家事诉讼示范证据运用问题研究

发布时间：2019-01-03 14:43

【摘要】：随着现行家事诉讼改革的推进,法院调解取代依法审判成为家事诉讼纠纷解决的主要方式。在家事诉讼中,片面追求调解结案的局限和不足日益凸显。因此有必要反思家事诉讼改革的方向,实现家事诉讼纠纷的法律规范化解决。在家事诉讼过程中,不论是当事人证明待证事实,还是法官认定案件事实,一切活动都是围绕着诉讼证据进行。家事诉讼纠纷法律规范化解决有赖于证据的恰当运用,诉讼证据是整个诉讼活动的核心。但是,家事纠纷不同于一般的民事纠纷,其特殊性主要体现在诉讼证明的困难。要实现家事诉讼纠纷的法律规范化解决,就需要建立家事诉讼证明司法能动机制,构建家事诉讼示范证据运用规则体系,指引当事人进行取证和举证,规范法官进行释明和认证。文章主体分为四个部分。首先,对家事诉讼示范证据进行概述,阐述证据运用在家事诉讼活动中的核心地位,引出家事诉讼示范证据的含义。接着,分析家事诉讼证据运用的司法现状及其成因,即家事诉讼证据运用的困难。接着,论证家事诉讼示范证据的指引和规范机能对家事诉讼证据运用之困难的化解,既是对前一部分的回应,也是对下一部分构建家事诉讼示范证据运用规则体系的铺垫。最后,根据家事诉讼活动的进程,从确立待证事实确认规则、当事人举证规则、法官释明规则、法官认证规则等方面,构建家事诉讼示范证据运用规则体系,为家事诉讼主体提供司法证明上的指引和事实认定上的规范。
[Abstract]:With the advancement of the current reform of family litigation, court mediation has become the main way to settle disputes in family litigation instead of adjudication according to law. In family litigation, the limitation and insufficiency of one-sided pursuit of mediation and closure are increasingly prominent. Therefore, it is necessary to reflect on the direction of family litigation reform and to realize the legal standardization of resolving family litigation disputes. In the process of family action, whether the parties prove the facts to be proved or the judge determines the facts of the case, all the activities are carried out around the evidence of litigation. The standardized settlement of family litigation disputes depends on the proper use of evidence, which is the core of the whole litigation activity. However, family disputes are different from common civil disputes, and their particularities are mainly reflected in the difficulty of litigation proof. In order to realize the legal standardization of resolving family litigation disputes, it is necessary to establish the judicial active mechanism of family litigation proof, to construct a system of rules for the application of demonstration evidence in family litigation, and to guide the parties to collect evidence and prove evidence. Regulate the interpretation and certification of judges. The main body of the article is divided into four parts. First of all, the paper summarizes the model evidence of family litigation, expounds the core position of evidence in family litigation, and leads to the meaning of model evidence in family litigation. Then, the author analyzes the judicial status and causes of the application of family litigation evidence, that is, the difficulties in the application of family litigation evidence. Then, it is not only the response to the former part, but also the foreshadowing for the next part to construct the rules system of the application of the model evidence in the family litigation, which is not only the response to the former part, but also the solution of the guidance and normative function of the demonstration evidence in the family litigation to resolve the difficulty of the application of the family lawsuit evidence. Finally, according to the process of family action, from the establishment of the rules of confirming the facts to be proved, the rules of proof of the parties, the rules of interpretation by the judges, the rules of the authentication of the judges, and so on, the system of rules for the application of the model evidence in the family litigation is constructed. To provide judicial evidence for the main body of family litigation and the norms of the facts.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1;D923.9

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