论民事诉讼法律逻辑与生活逻辑的分野

ON THE SEPARATION BETWEEN THE LEGAL LOGIC AND LIVING LOGIC IN CIVIL PROCEDURE

由于最高人民法院关于民事诉讼证据的规定体现的程序本位理念在我国处于“无根”栽培状态,从而导致了民事诉讼法律逻辑与生活逻辑的分野。两种逻辑所代表的两种秩序间的冲突源于不同的哲学基础、不同的利益考量与分享。因此,问题的解决以能从根本上改变人的价值基本准则的利益分配为核心是两种逻辑整合的理性选择。

Though the ideal of priority of procedures had been expressed in the Regulation on Evidence for Civil Procedurals decreed by Superme People's Court ,the ideal is in non-root condition in China ,which leads to the separation between the legal logic and living logic of civil procedure.The conflict between the two logics is due to the differences between the base of philosohy and pondering and assignment of benefit . In order to combine the two logics ,it is a rational choice to make the ideal of fundermental values change completely by the assignment of benefit.