THE FUNDAMENTAL STUDY ON THE DEVELOPMENT POSSIBILITY OF JAPANESE REMEDIAL LAW

他们说，日本的传统程序理论是，民事诉讼程序的作用是理想化地确定实体权利的存在或不存在，而判决执行的作用是忠实地执行这一权利。但笔者指出，为了更快地发现、制衡和控制法官在案件中创设特别救济的自由裁量权，应当将救济法的规范从实体权利的规范中分离出来，并在不同的案件中创设新的救济规范，以指导法官作出包括最佳救济在内的判决。

They said the traditional procedural theory in Japan was that the role of civil procedure was to idealy establish the existence or inexistence of a substantive right and that of judgment enforcement was to implement such a righ faithfully. Then it was thought as natural that a substantive right a priori included the specific remedy, which could be drawed logically.However I made a point that in order to discover, check and control the discretion in judge's creating the specifically adequate remedy in one case at fast the norm of the remedial law should be separated from the norm of the substantive right and then new remedial norm should be created from case to case so as to give the judge the guide to make the judgment including the best remedy in one case.To concrete this theory I wrote following articles in three years.I think that I continue to study on the above subject.