论民事诉讼中当事人不知陈述
发布时间：2019-05-24 04:31
【摘要】：在民事诉讼中,当事人不知陈述是介于自认与争执的一种特殊形态的陈述,但是其效力却是模糊的,需法律加以规制。对此,大陆法系主要国家与地区对当事人不知陈述的规制主要有两种处理方式:第一,以德国立法为代表的合法要件许可式;第二,以日本法为典型的自由心证判别式。两种立法例不论是从立法论还是解释论上都大相径庭。而我国目前对此并没有相应的规制痕迹,无论是民诉立法还是司法解释对不负主张责任一方当事人不知陈述的规范均付之阙如,其结果是受诉法院对不负主张责任所作的不知陈述如何评价无据可循,造成法律的不安定。为平衡双方当事人诉讼上的利益,在目前集中审理、诉讼促进理念的倡导下,对当事人不知陈述的规制显得尤为重要。全文共分为五个部分:第一部分:问题之提出。这一部分总体上以当事人在诉讼审理过程中所作的不知陈述如何认定来展开。首先确定是一般性地许可当事人不知陈述还是应该对当事人不知陈述进行规制,进而推导出若予以规制则其规制的方法。另外,诉讼的审理是通过法院与当事人各司其职来推进的,法院根据当事人的主张整理争点,而后进入到证据调查阶段,以此角度提出,在法院许可当事人不知陈述情形下,会与其所负之诉讼上义务存在一定的紧张关系。第二部分:当事人不知陈述的理论架构。当事人与法院所负之诉讼义务有很多,而与当事人不知陈述最为关联的则是当事人真实义务、具体化义务、诉讼促进义务和法院阐明义务。这一部分从不知陈述与上述义务之间的关系进行阐述:当事人真实义务是不知陈述的理论前提;具体化义务的例外则是不知陈述的存在土壤;诉讼促进义务则与不知陈述具有内在冲突关系;法官阐明义务则是不知陈述的外部协助。第三部分:当事人不知陈述域外立法例之借鉴。我国民事诉讼与大陆法系国家和地区同采辩论主义诉讼构造,德国、日本以及我国的台湾地区是大陆法系的典型代表,其对当事人不知陈述都有规定,而规制路径却各不相同。这一部分对德国、日本以及我国台湾地区关于当事人不知陈述的规定进行全方位的梳理,在比较分析的基础上试着获悉一些规制我国当事人不知陈述具体经验,从而提出一条中国化的规制当事人不知陈述应遵循的路径。第四部分:我国规制当事人不知陈述之考评。尽管就目前形势来讲,不知陈述在我国司法实践中欠缺存在空间,但是在我国民事诉讼中,对其进行事先规制仍然具有十足的必要。这一部分主要是对我国规制不知陈述的背景予以详细梳理。首先阐明我国现行法无任何对当事人不知陈述的规定;其次明确我国对不知陈述的保障机制存在明显不足,主要是当事人陈述定位不明晰、陈述义务不充实、拟制自认内涵不完整等几方面问题。第五部分:当事人不知陈述在我国的具体规制。这一部分对当事人不知陈述的规制主要从以下三个方面齐行并进:第一,完臻当事人不知陈述的保障机制;第二,建构当事人不知陈述的具体内容;第三,确立当事人不知陈述的追复路径。
[Abstract]:In civil action, the parties do not know that the statement is a kind of special form of self-recognition and dispute, but its effect is vague and need to be regulated by law. In this regard, the main countries and regions of the civil law system mainly have two ways of dealing with the parties' ignorance of the statement: first, the legal requirement of the representative of the German legislation; and the second, the model of free-heart syndrome, which is typical of the Japanese law. The two legislative cases are different from both the legislative theory and the interpretation theory. At present, there is no corresponding regulation mark in our country, whether the civil or judicial interpretation is not the standard that the party of the responsible party does not know the statement, such as, the result is that the court of the defendant does not know how to evaluate the non-compliance with the unknowing statement of the responsible party, The unstability of the law. In order to balance the interests of the parties in the litigation, it is very important for the parties to do not know the regulation of the statement under the promotion of the current centralized trial and the idea of litigation promotion. The full text is divided into five parts: the first part: the question. This part is generally carried out on the basis of an unknown presentation made by the parties in the course of the proceedings. The first is to determine whether the parties do not know the statement in general or the parties do not know the statement, and then the method of the regulation is derived. In addition, the trial of the lawsuit is advanced through the court and the party's division, and the court, according to the party's claim, finishes the dispute, and then enters the evidence investigation stage, which, in the case of the court's permission of the parties, does not know the state of the presentation, There is a certain tension between the obligation to be brought to it. The second part: The parties do not know the theory structure of the statement. There are a lot of litigation obligations between the parties and the court, and the most relevant to the parties is the real obligation of the party, the specific obligation, the obligation of action and the obligation of the court to set forth the obligations. This part expounds the relationship between the state-of-the-art and the above-mentioned obligations: the real obligation of the party is the theoretical premise of not knowing the statement, the exception of the concrete obligation is the existence of the soil, and the action-promoting obligation has the internal conflict relation with the unknown statement; The judge's duty to clarify is an out-of-the-art form of assistance. The third part: the parties do not know the reference of the extraterritorial legislation. China's civil action is the typical representative of the continental law system in the countries and regions of the continental law system, and the Taiwan region of Germany, Japan and China is the representative of the continental law system. This part, on the basis of comparative analysis, tries to learn that some of the parties do not know the specific experience, Therefore, it is proposed that a Chinese regulatory party does not know the path to which the statement should be followed. The fourth part: China's regulation parties do not know the appraisal of the statement. Although there is a lack of space in the judicial practice of our country in the present situation, it is necessary to make the pre-regulation in the civil action of our country. This part is mainly about the background of China's regulation of unknown statements. First, it is clear that the existing law of our country has nothing to do with the party's understanding of the statement; secondly, it is clear that there is a clear lack of the guarantee mechanism of the state-of-the-art in our country, which is mainly the problem that the party's position is unclear, the obligation of the statement is not full, the self-recognition is incomplete, and so on. The fifth part: the parties do not know the specific regulation in our country. This part goes hand in hand with the following three aspects: the first and the third parties do not know the guarantee mechanism of the statement; secondly, the construction party does not know the specific content of the statement; and thirdly, the party is established that the party does not know the tracing path of the statement.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.1
本文编号：2484559
[Abstract]:In civil action, the parties do not know that the statement is a kind of special form of self-recognition and dispute, but its effect is vague and need to be regulated by law. In this regard, the main countries and regions of the civil law system mainly have two ways of dealing with the parties' ignorance of the statement: first, the legal requirement of the representative of the German legislation; and the second, the model of free-heart syndrome, which is typical of the Japanese law. The two legislative cases are different from both the legislative theory and the interpretation theory. At present, there is no corresponding regulation mark in our country, whether the civil or judicial interpretation is not the standard that the party of the responsible party does not know the statement, such as, the result is that the court of the defendant does not know how to evaluate the non-compliance with the unknowing statement of the responsible party, The unstability of the law. In order to balance the interests of the parties in the litigation, it is very important for the parties to do not know the regulation of the statement under the promotion of the current centralized trial and the idea of litigation promotion. The full text is divided into five parts: the first part: the question. This part is generally carried out on the basis of an unknown presentation made by the parties in the course of the proceedings. The first is to determine whether the parties do not know the statement in general or the parties do not know the statement, and then the method of the regulation is derived. In addition, the trial of the lawsuit is advanced through the court and the party's division, and the court, according to the party's claim, finishes the dispute, and then enters the evidence investigation stage, which, in the case of the court's permission of the parties, does not know the state of the presentation, There is a certain tension between the obligation to be brought to it. The second part: The parties do not know the theory structure of the statement. There are a lot of litigation obligations between the parties and the court, and the most relevant to the parties is the real obligation of the party, the specific obligation, the obligation of action and the obligation of the court to set forth the obligations. This part expounds the relationship between the state-of-the-art and the above-mentioned obligations: the real obligation of the party is the theoretical premise of not knowing the statement, the exception of the concrete obligation is the existence of the soil, and the action-promoting obligation has the internal conflict relation with the unknown statement; The judge's duty to clarify is an out-of-the-art form of assistance. The third part: the parties do not know the reference of the extraterritorial legislation. China's civil action is the typical representative of the continental law system in the countries and regions of the continental law system, and the Taiwan region of Germany, Japan and China is the representative of the continental law system. This part, on the basis of comparative analysis, tries to learn that some of the parties do not know the specific experience, Therefore, it is proposed that a Chinese regulatory party does not know the path to which the statement should be followed. The fourth part: China's regulation parties do not know the appraisal of the statement. Although there is a lack of space in the judicial practice of our country in the present situation, it is necessary to make the pre-regulation in the civil action of our country. This part is mainly about the background of China's regulation of unknown statements. First, it is clear that the existing law of our country has nothing to do with the party's understanding of the statement; secondly, it is clear that there is a clear lack of the guarantee mechanism of the state-of-the-art in our country, which is mainly the problem that the party's position is unclear, the obligation of the statement is not full, the self-recognition is incomplete, and so on. The fifth part: the parties do not know the specific regulation in our country. This part goes hand in hand with the following three aspects: the first and the third parties do not know the guarantee mechanism of the statement; secondly, the construction party does not know the specific content of the statement; and thirdly, the party is established that the party does not know the tracing path of the statement.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.1
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1 李蝶;论民事诉讼中当事人不知陈述[D];西南政法大学;2015年
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