我国民事诉讼证据书面化、单一化倾向的实证分析

发布时间：2018-05-18 03:29

本文选题：民事诉讼 + 书面证据　；参考：《河南大学》2014年硕士论文

【摘要】：在我国民事诉讼的证据类型中，书证一直占有举足轻重的位置，基于我国传统法制与现代大陆法的传统，我国在司法实践中呈现出极为明显的“书证中心主义”。不仅如此，各种类型证据的书面化倾向也在审判实务中越来越凸显。“证据决定程序”，正确把握我国民事诉讼实践中证据运行情况，就抓住了我国民事诉讼程序的关键要素，以此为依据，探索民事诉讼程序改革途径才比较可靠。本文采用实证研究的方法，，笔者选取H省三个中级人民法院与三个基层人民法院，以其2010年、2011年和2012年三年中532个民事案件一审裁判文书为基础对其证据进行分析，得出民事诉讼证据单一化、倾向化现象的实践运行特点。并在此基础上分析这种倾向产生的原因，合理性层面与带来的问题，并结合我国司法的实践运行状况，法律法规的具体规定，针对性的提出改进的方法。正文分为四个部分，内容安排如下：第一部分为我国民事诉讼证据实践运行状况及特点。该部分首先对笔者获取的第一手实证资料进行统计分析，得出我国民事诉讼证据书证单一化倾向十分明显与书面证据在司法实践中被大量使用的结论。而后基于对审判实践运行情况的实际调查，归纳其特点。第二部分为我国民事诉讼证据依赖书面证据的原因。首先对书面证据自身优势进行比较分析总结出书面证据与其他类型证据相比的优点。其次基于我国古代法制传统与儒家息讼文化的传承来分析我国民事诉讼中对书证等书面证据的心理依赖。再次根据审判中法官对证据采信的角度对当事人为什么更愿意选择书证作为其诉讼证据来进行原因分析。最后则是根据我国现行的民事实体法等法律文件对一定类型的法律行为的书面方式进行的强制性规定的分析，得出实体法对该类证据的青睐。第三部分为证据单一化、书面化倾向的合理性层面。该部分是基于两个法院的案例来进行合理性论证。通过对这两个案例中证据的来源与采信情况的总结分析，得出证据单一化、书面化倾向不仅是我国现行法律制度、行政体制以及民商事活动的内在要求与司法实践的必然趋势，而且也是法官在审判工作中防范司法风险的必然性选择。第四部分为证据单一化、书面化倾向问题及其改进路径。由于书证等书面证据的大量使用，其真伪判断问题就显得尤为重要，为此有必要对真伪判断的程序与方法进行明确的规定。其次，书面证据在诉讼中被第三方占有的情况多有发生，因此应细化案外人提供证据的程序性规定与拒不提供的法律后果。最后，案件事实的查明依赖的证据应该是多元的，应当关注证人出庭及证人证言真实性的制度保障，改善法官对证人不信任的司法现状。
[Abstract]:In the evidence types of civil litigation in China, documentary evidence has always played an important role. Based on the tradition of Chinese traditional legal system and modern continental law, there is a very obvious "documentary centralism" in judicial practice in our country. Moreover, the written tendency of various types of evidence is more and more prominent in trial practice. "evidence decides procedure", correctly grasps the evidence operation situation in our country's civil litigation practice, has grasped the key elements of our country's civil procedure, takes this as the basis, explores the civil procedure reform way to be more reliable. In this paper, the author chooses three intermediate people's courts and three grass-roots people's courts in H province to analyze the evidence based on 532 documents of first instance adjudication of civil cases in 2010, 2011 and 2012. The paper draws the characteristics of the practice operation of the single and inclined evidence in civil litigation. On this basis, this paper analyzes the causes of this tendency, the rationality level and the problems brought about, and combines the practice of our country's judicial operation, the specific provisions of laws and regulations, and puts forward targeted improvement methods. The text is divided into four parts, which are arranged as follows: The first part is the operation and characteristics of evidence in civil litigation in China. In this part, the author firstly makes a statistical analysis of the firsthand empirical data obtained by the author, and draws the conclusion that the single tendency of documentary evidence is very obvious and written evidence is widely used in judicial practice in our country. Then based on the actual investigation of the operation of trial practice, summarize its characteristics. The second part is the reason why the evidence of civil action depends on written evidence. Firstly, the advantages of written evidence compared with other types of evidence are analyzed and summarized. Secondly, based on the tradition of ancient Chinese legal system and the inheritance of Confucian culture of litigation, this paper analyzes the psychological dependence of documentary evidence such as documentary evidence in civil litigation in China. Thirdly, according to the judge's acceptance of evidence in the trial, the author analyzes the reasons why the parties are more willing to choose documentary evidence as their lawsuit evidence. Finally, based on the analysis of the mandatory provisions on the written form of certain types of legal acts in China's current civil substantive law and other legal documents, the author draws the conclusion that the substantive law is in favor of this kind of evidence. The third part is the rationality level of evidence simplification and written tendency. This part is based on the case of the two courts to conduct reasonable argument. Through summing up and analyzing the source and acceptance of evidence in these two cases, it is concluded that the unitization of evidence and the tendency of writing are not only the inherent requirements of the current legal system, administrative system, civil and commercial activities and the inevitable trend of judicial practice in China, but also in the practice of civil and commercial affairs. Moreover, it is the inevitable choice for judges to guard against judicial risks in judicial work. The fourth part is the evidence simplification, the written tendency problem and its improvement path. Due to the extensive use of documentary evidence such as documentary evidence, it is particularly important to judge its authenticity. Therefore, it is necessary to make clear provisions on the procedure and methods for judging authenticity and falsehood. Secondly, the case that written evidence is in the possession of third party often occurs in litigation, so the procedural provisions and the legal consequences of refusing to provide evidence should be detailed. Finally, the investigation of the facts of the case should rely on multiple evidence, and should pay attention to the system guarantee of the witness appearing in court and the authenticity of witness testimony, and improve the judicial status quo of the judge's distrust of the witness.
【学位授予单位】：河南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1

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