当事人主导抑或法院主导?——传统民事诉讼模式的误判与归位

Being Led by Litigants or by Judge?——Misjudgment and Re-orientation of the Traditional Patterns of Civil Litigation

将"辩论主义"或"对抗制"作为传统民事诉讼模式的识别标准,都存在以偏概全的缺陷。在"当事人主张论证——法院裁判"的基本构造下,从程序运作层面、案件事实层面和法律适用层面三个层面考察,无论大陆法系还是英美法系从来没有绝对的当事人主导或法院主导。诉权和审判权之间协调配置是各国传统民事诉讼程序设计的共同法理。

It has defect of taking a part for the whole whether considering adversary system or verhandlungsmaxime as the standard of the traditional patterns of civil litigation. There has never been the pattern of being led absolutely by litigants or by judge in civil litigation when investigating both civil law system or common law system in the aspect of procedure operating, finding fact by ascertaining evidence, and law applying in the structure of being claimed and proved by litigants and being judged by courts. Equilibrium between the rights of litigants and powers of judge is the notion of designing civil procedure law of all modern countries.