附理由的否认及其义务化研究
发布时间：2018-10-10 18:41
【摘要】：在民事诉讼中,附理由的否认乃是与单纯的否认相对的否认形态。与单纯的否认相比,附理由的否认能有效地促进当事人之间争点的形成从而能保障法院进行充实的、有效率的证据调查。在德国、日本等大陆法系国家的民事诉讼中,附理由的否认已呈义务化之趋向。无论是其判例还是学说均强调,不负证明责任的当事人若否认对方当事人所主张的事实,必须附有理由进行具体的陈述,而单纯的否认通常被认为是不合法的从而视为承认对方当事人所主张的事实。附理由的否认义务乃是基于诚实信用原则而创设的个别性义务。为平衡双方当事人诉讼上的不利益之归属,不负证明责任的当事人履行附理由的否认义务须以对方当事人所主张的事实已合乎具体化之要求为前提。不过,在情报偏在性的事件中,应例外地承认不负证明责任的当事人对对方当事人所为的抽象的事实主张也负有附理由的否认义务。
[Abstract]:In civil proceedings, denial with reasons is a form of denial opposite to simple denial. Compared with the simple denial, the reasoned denial can effectively promote the formation of disputes between the parties and thus ensure the court to conduct substantial and efficient evidence investigation. In civil litigation in Germany, Japan and other civil law countries, the denial of reasons has become obligatory. Whether in its jurisprudence or doctrine, it is emphasized that a party that is not responsible for proof must, if it denies the facts claimed by the other party, make a specific statement with reasons, A mere denial is often considered illegal and thus an acknowledgement of the facts claimed by the other party. The obligation to deny with reason is an individual obligation created on the basis of the principle of good faith. In order to balance the attribution of the non-interests of the parties, the parties who do not bear the burden of proof must perform the disavowal obligation with reasons on the premise that the facts advocated by the other party have met the requirement of materialization. However, in cases where intelligence is biased, it should be acknowledged that the irresponsible party is also under a reasoned denial obligation for the abstract factual claim of the other party's actions.
【作者单位】： 武汉大学法学院;
【分类号】：D915.2
，
本文编号：2262840
[Abstract]:In civil proceedings, denial with reasons is a form of denial opposite to simple denial. Compared with the simple denial, the reasoned denial can effectively promote the formation of disputes between the parties and thus ensure the court to conduct substantial and efficient evidence investigation. In civil litigation in Germany, Japan and other civil law countries, the denial of reasons has become obligatory. Whether in its jurisprudence or doctrine, it is emphasized that a party that is not responsible for proof must, if it denies the facts claimed by the other party, make a specific statement with reasons, A mere denial is often considered illegal and thus an acknowledgement of the facts claimed by the other party. The obligation to deny with reason is an individual obligation created on the basis of the principle of good faith. In order to balance the attribution of the non-interests of the parties, the parties who do not bear the burden of proof must perform the disavowal obligation with reasons on the premise that the facts advocated by the other party have met the requirement of materialization. However, in cases where intelligence is biased, it should be acknowledged that the irresponsible party is also under a reasoned denial obligation for the abstract factual claim of the other party's actions.
【作者单位】： 武汉大学法学院;
【分类号】：D915.2
，
本文编号：2262840
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