协同主义诉讼模式与和谐司法机制的建构——以释明权为中心的展开

Coordination Principle Lawsuit Pattern and Harmonious Judicial Mechanism Construction——Analysis basing on the clarification right

民事诉讼分为审理内容和法律适用两个方面。传统观点采"汝说事实,我给法律"的法谚,主张裁判基础事实的构筑采当事人提出主义,事实和证据的法评价专属法院职权。无法认定事实与证据时采当事人自我责任原则。协同主义诉讼模式下反对在事实问题与法律问题上设定泾渭分明的界限,主张法官通过对事实问题和法律问题的释明,积极参与案件事实的解明,在法律适用上强调法院与当事人之间对话和讨论的义务。当前在协同主义诉讼模式下构建和谐司法机制,以实现司法活动公正高效权威的运作,合理地分担法官与当事人的作用显得尤为重要。在事实问题上法官的积极参与作用受当事人处分权主义的支配。在法律问题上当事人的参与性也应具体问题具体分析,法律无明文规定时法院应尊重当事人的参与权,有义务与当事人一起完成法律适用的任务。

The civil lawsuit includes the trial and the applicability of the law. The traditional viewpoint is reflected in the procedural proverb that ＂you state the fact, and I apply the law＂. And it advocates that the litigants are responsible for stating the facts, and the court for the interpretation of them. When facts and evidence are unable to be identified, it picks the litigant self-responsibility principle. The coordination principle lawsuit pattern opposes the clear-cut boundary between facts and law application and advocates that judge should positively involve himself in the clarification of the facts and dialogue with the litigants. Under the current situation the establishment of harmonious jurisdiction mechanism can serve to realize the right and effective operation of jurisdiction and sound co-operation between the judges and the litigants. The author believes that the judge＇s role in the treatment of the facts and evidence is subject to the litigant disposition right. The litigant＇s role in the legal process should be considered with the actual situation in view. If it is not regulated in the law, the litigant＇s rights should be respected, and the court is obliged to conduct the legal matter with him.