辩论主义与协同主义的思辩——以德、日民事诉讼为中心

Consideration of Principle of Debate and Cooperationism——with the civil procedure in Japan and Germany in focus

辩论主义自创始以来,在德、日两国经历了完全不同的发展路径。日本在二战前后对辩论主义的本质也有着不同的解读。德国在社会民事诉讼理论指导下,出现了否定辩论主义,提倡协同主义的倾向。今后我国民事诉讼法的修改中,引入释明义务法律观点指出义务、真实义务已是大势所趋。

Principle of debate, as a basic theory of civil procedure, has seen different developmental routes. Japan had different readings of the essence of principle of debate before and after World War II. In Germany guided by theory of social civil procedure, there rose a tendency of vetoing the principle of debate and advocating cooperationism. In the future, duty of explanation of the facts, duty of the application of law, and the duty of truthfulness will be introduced into the civil procedural law. It is reasonable that the debates on procedural models be stopped, and that more focus be placed on concretization of the three duties in civil procedure.