我国民事诉讼中应建立答辩失权制度

Necessary to Establish the System of the Defense Losing-Right in Our Civil Lawsuit

我国民事诉讼立法中尚未确立答辩失权制度,而现行的答辩制度存在着明显的缺陷,如有违程序公正原则,降低庭审效率,不利于现行民事证据规则的推行。建立答辩失权制度是对当事人处分权的合理限制,有利于落实诉讼平等原则、避免举证混乱、提高诉讼效益,实现"公正与效率"的双重价值目标。国外答辩失权制度的实践也充分证明了这一制度合理性,因此我国应当借鉴英美法系以答辩期间作为答辩权行使的法定要件的立法模式,构建符合我国实际情况的民事诉讼答辩失权制度,同时也应注意保护被告的合法权利。

On the one hand, in our legislation of civil Lawsuit, the system of defense losing-right has not yet established; and on the other hand, the defense system in operation presents some evident defects such as violating the procedure fair principle, reducing the effect of court judgment, and being useless of carrying out the current civil evidence rules. The establishment of the system of defense losing right signifies the reasonable limit of the parties＂ punishing right, which is propitious to putting into effect the lawsuit fair principle, to avoid the confusion of giving evidences, to hence the lawsuit effect, and to realize the double value targets of the ＂justness and efficiency＂. Since the foreign system of the defense losing-right has sufficiently been proved reasonable in its practice, it is necessary, by reference to the British and American law system and using it as the legislation model of the important documents of carrying out the defense right, to construct our civil-lawsuit system of the defense losing-right in accordance with our practice. And, at the same time, the legal right of the accused should be paid an attention to.