强制证人出庭:质疑中的反思

The Witness Appearing in Court by Enforcement——Contradiction and Reflection

证人不出庭作证一直是困扰我国民事诉讼的焦点问题。对此,理论界和实务界提出的对策是强制证人出庭作证。但这一立法思路不仅存在理论上的缺陷,现实中也缺少相应的制度支撑;既与我国社会环境不相融合,又无法产生预期的证明效果。所以,应慎而为之,不可寄予过高的估计与评价。证人出庭作证应以当事人主义诉讼结构为背景,将证人的定位由法院属性向当事人属性转化,将证人出庭作证的动因由法院强制向当事人诱导方向转变,同时构建支撑这一转型的制度化体系。

The problem of witness' unwilling appearance in court always puzzles civil action in China. To solve this problem, academic community and judicial practice community suggested forcing the witness to appear in court. However, this mode cannot help overcome its defect in theory or find the supporting system in practice. It does not agree with social circumstances or lead to expected evidential effect. So it should be treated discreetly. In the author's opinion, the system of witness appearance in court should be constructed on the basis of adversary system. The role of the witness should be set on the party instead of the court and the motive of witness should be turned from enforcement by court to persuading the party concerned. The corresponding system should also be built.