论拟制自认之构成及其法理——兼评《关于民事诉讼证据的若干规定》第8条第2款

On the Condition of Admission of Fiction

拟制自认并非真正的自认,它以私法自治原则下之辩论主义和处分权主义为基础,是当事人为自主选择后之必然结果;同时,也是为实现当事人间之真正平等,并基于诚信原则的要求,对当事人不为协力和真实等义务,而科以不利后果之法律强制。其在时间、主体和客体等方面有着自己的特殊构成,我国关于拟制自认的相关规定还有待完善。

The admission of fiction is not the admission. It is based on the adversary system and the creed of disposal, which is subjected to the self- governance principle of private law. Under the principle of good faith, at the same time, and for the realization of the two - parts equality, it is compulsion of disbennifit of law to the part for his failing to act cooperative and truthful. So it has itself- characteristics in the condition of the time, the subject and the object etc. The rules and regulations should be amended about the admission of fiction of China.