我国民事庭审调查研究

发布时间：2018-02-20 19:03

本文关键词： 庭审调查要件事实调查顺序调查方法　出处：《郑州大学》2017年硕士论文　论文类型：学位论文

【摘要】：民事审判程序中的庭审调查是民事庭审的核心环节,其最基本的功能在于查明和确认案件事实。由于我国立法中具体规范的缺失、学术研究操作性环节的指导性不足,司法实践中的庭审调查存在许多问题:庭前准备过度,侵蚀庭审调查功能并虚化庭审;需要查明的要件事实确定不准确;庭审调查的顺序不合理,没有规范的调查顺序规则指引,出现法官随意确定、强势主导,或者法官放任当事人自行陈述、出示证据、质证等各种做法;庭审调查的方法不适当,法庭认定证据的时机把握不准确。针对立法和司法实践存在的问题,提出了相应的解决对策。合理分配庭审调查和庭前准备任务,庭前准备只应是做程序性事务性的准备,而不应包括实质性审理的内容,像确认事实和认定证据这些实质审理内容的都应在开庭审理时进行;正确界定庭审调查的要件事实是开展好庭审调查的前提,只有准确全面地确定当事人争议事实、法官判断定案必须查明的事实、当事人承认后又反悔事实等要件事实,才能完成庭审调查的根本任务;确定庭审调查的顺序,不应以证据的种类为标准和根据,应当按照需要查明的事实即争议事实发生发展的顺序进行。庭审调查伊始,法官在当事人陈述和答辩的基础上,及时总结无争议事实并当庭确认。对争议事实,按照原告主张事实的发生时间顺序开展调查,由当事人出示证据质证。一案有单一事实而事实过程较长的,分阶段、层次调查。一案有多个事实的,对每个事实分项调查;证据出示质证的方式方法因案而异,对案件核心证据应当一证一举一质,对案情简单证据较少的可以全案举证、综合质证,对案情复杂,事实过程较长或有多个事实的,可以采取分组举证质证;关于法庭认定证据的时机,在独任审判时可以视情况当庭认证或庭审后认证,但合议制条件下,不经过认真合议而直接由审判长当庭认证不符合合议原则,因此,在普通程序中的庭审调查中,不主张当庭认证。鉴于现行立法存在的问题,民诉法应当设专门的一节规定庭审调查;增加规定:及时归纳当事人共同认可事实并当庭予以确认;及时归纳确认当事人争议要件事实;修改庭审调查的顺序,按照需要查证的要件事实确定调查顺序,对于证据效力的认定,法官根据审理情况,可以在法庭当庭进行,也可以在庭审后进行,但认定结果和理由应当在法庭上向当事人公布。
[Abstract]:The trial investigation in civil trial procedure is the core link of civil trial, and its most basic function is to find out and confirm the facts of the case. Due to the lack of specific norms in the legislation of our country, the guidance of the operational link of academic research is insufficient. In judicial practice, there are many problems in the trial investigation: excessive preparation before the trial, eroding the function of the investigation of the trial and fictitious trial; the facts that need to be ascertained are not accurate; the order of the investigation in the trial is unreasonable, the order of the investigation is unreasonable. There are no standardized rules on the order of investigation, and there are various practices that the judge determines at will, dominates strongly, or that the judge allows the parties to present their own statements, produce evidence, cross-examine evidence, and so on; the methods of court investigation are not appropriate. The court finds that the timing of evidence is not accurate. In view of the problems existing in legislation and judicial practice, it puts forward corresponding countermeasures. It should not include the content of the substantive trial, such as the confirmation of facts and the determination of evidence, which should be conducted during the trial session; the correct definition of the essential elements of the trial investigation is the premise of conducting a good trial investigation. Only by accurately and comprehensively determining the facts of dispute between the parties, the facts that the judge must find out in the judgment of the final case, the facts of the parties admitting and repenting the facts, and so on, can the fundamental task of the trial investigation be completed, and the order of the trial investigation be determined. It should not be based on the type of evidence, but should be carried out in the order in which the facts that need to be ascertained, namely, the disputed facts, occur and develop. At the beginning of the trial investigation, the judge shall, on the basis of the statement and defence of the parties, Promptly summarize the undisputed facts and confirm them in court. If the disputed facts are investigated in the order in which the facts are claimed by the plaintiff, and the parties present evidence for cross-examination. If the case has a single fact and the fact process is relatively long, it shall be divided into stages. Level investigation. If a case has multiple facts, it will investigate each fact item by item; the ways and means of presenting cross-examination of evidence will vary from case to case. The core evidence of the case shall be proved one by one, and the case with less simple evidence may be proved in the whole case. If the case is complex and the fact process is relatively long or there are multiple facts, the comprehensive cross-examination may be conducted in groups of evidences; regarding the timing of the court's determination of the evidence, it may be authenticated in court or after the trial, as appropriate, at the sole trial. However, under the collegial system, it is not in conformity with the principle of collegiality to certify directly by the presiding judge in court without serious collegiality. Therefore, in the investigation of the trial in the ordinary procedure, the authentication in court is not advocated. In view of the problems existing in the current legislation, The Law on Civil procedure shall set up a special section to provide for the investigation of the trial; add provisions: promptly induct and confirm the facts jointly approved by the parties and confirm them in court; sum up and confirm the facts of the disputing elements of the parties in a timely manner; and revise the order of the investigation in court, To determine the order of investigation according to the facts that need to be verified, the judge may, according to the circumstances of the trial, conduct the determination of the validity of the evidence in court or after the hearing. However, the findings and reasons shall be published to the parties in court.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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