論民事訴訟中當(dāng)事人不知陳述
發(fā)布時(shí)間：2019-05-24 04:31
【摘要】：在民事訴訟中,當(dāng)事人不知陳述是介于自認(rèn)與爭執(zhí)的一種特殊形態(tài)的陳述,但是其效力卻是模糊的,需法律加以規(guī)制。對此,大陸法系主要國家與地區(qū)對當(dāng)事人不知陳述的規(guī)制主要有兩種處理方式:第一,以德國立法為代表的合法要件許可式;第二,以日本法為典型的自由心證判別式。兩種立法例不論是從立法論還是解釋論上都大相徑庭。而我國目前對此并沒有相應(yīng)的規(guī)制痕跡,無論是民訴立法還是司法解釋對不負(fù)主張責(zé)任一方當(dāng)事人不知陳述的規(guī)范均付之闕如,其結(jié)果是受訴法院對不負(fù)主張責(zé)任所作的不知陳述如何評價(jià)無據(jù)可循,造成法律的不安定。為平衡雙方當(dāng)事人訴訟上的利益,在目前集中審理、訴訟促進(jìn)理念的倡導(dǎo)下,對當(dāng)事人不知陳述的規(guī)制顯得尤為重要。全文共分為五個(gè)部分:第一部分:問題之提出。這一部分總體上以當(dāng)事人在訴訟審理過程中所作的不知陳述如何認(rèn)定來展開。首先確定是一般性地許可當(dāng)事人不知陳述還是應(yīng)該對當(dāng)事人不知陳述進(jìn)行規(guī)制,進(jìn)而推導(dǎo)出若予以規(guī)制則其規(guī)制的方法。另外,訴訟的審理是通過法院與當(dāng)事人各司其職來推進(jìn)的,法院根據(jù)當(dāng)事人的主張整理爭點(diǎn),而后進(jìn)入到證據(jù)調(diào)查階段,以此角度提出,在法院許可當(dāng)事人不知陳述情形下,會與其所負(fù)之訴訟上義務(wù)存在一定的緊張關(guān)系。第二部分:當(dāng)事人不知陳述的理論架構(gòu)。當(dāng)事人與法院所負(fù)之訴訟義務(wù)有很多,而與當(dāng)事人不知陳述最為關(guān)聯(lián)的則是當(dāng)事人真實(shí)義務(wù)、具體化義務(wù)、訴訟促進(jìn)義務(wù)和法院闡明義務(wù)。這一部分從不知陳述與上述義務(wù)之間的關(guān)系進(jìn)行闡述:當(dāng)事人真實(shí)義務(wù)是不知陳述的理論前提;具體化義務(wù)的例外則是不知陳述的存在土壤;訴訟促進(jìn)義務(wù)則與不知陳述具有內(nèi)在沖突關(guān)系;法官闡明義務(wù)則是不知陳述的外部協(xié)助。第三部分:當(dāng)事人不知陳述域外立法例之借鑒。我國民事訴訟與大陸法系國家和地區(qū)同采辯論主義訴訟構(gòu)造,德國、日本以及我國的臺灣地區(qū)是大陸法系的典型代表,其對當(dāng)事人不知陳述都有規(guī)定,而規(guī)制路徑卻各不相同。這一部分對德國、日本以及我國臺灣地區(qū)關(guān)于當(dāng)事人不知陳述的規(guī)定進(jìn)行全方位的梳理,在比較分析的基礎(chǔ)上試著獲悉一些規(guī)制我國當(dāng)事人不知陳述具體經(jīng)驗(yàn),從而提出一條中國化的規(guī)制當(dāng)事人不知陳述應(yīng)遵循的路徑。第四部分:我國規(guī)制當(dāng)事人不知陳述之考評。盡管就目前形勢來講,不知陳述在我國司法實(shí)踐中欠缺存在空間,但是在我國民事訴訟中,對其進(jìn)行事先規(guī)制仍然具有十足的必要。這一部分主要是對我國規(guī)制不知陳述的背景予以詳細(xì)梳理。首先闡明我國現(xiàn)行法無任何對當(dāng)事人不知陳述的規(guī)定;其次明確我國對不知陳述的保障機(jī)制存在明顯不足,主要是當(dāng)事人陳述定位不明晰、陳述義務(wù)不充實(shí)、擬制自認(rèn)內(nèi)涵不完整等幾方面問題。第五部分:當(dāng)事人不知陳述在我國的具體規(guī)制。這一部分對當(dāng)事人不知陳述的規(guī)制主要從以下三個(gè)方面齊行并進(jìn):第一,完臻當(dāng)事人不知陳述的保障機(jī)制;第二,建構(gòu)當(dāng)事人不知陳述的具體內(nèi)容;第三,確立當(dāng)事人不知陳述的追復(fù)路徑。
[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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D925.1
本文編號：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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D925.1
【相似文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 李蝶;論民事訴訟中當(dāng)事人不知陳述[D];西南政法大學(xué);2015年
，本文編號：2484559
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