诉讼资料提出失权制度之德日比较与启示

The Comparison and Revelation of Losing-right Systems of Evidentiary Materials' Presentation in Japan and Germany

当随时提出主义被视为诉讼迟延的罪魁祸首之后,德国和日本便开始转向适时提出主义。这种改变体现于立法上的失权规定。换言之,德日民事诉讼法通过特定情形下限制当事人提出攻击防御方法以防止诉讼迟延。当事人在特定情形下提出的诉讼资料将遭受失权的效果。但是,过于严苛的适用失权规定将有损对于当事人的程序保障,有损实体真实的发现,且与当前的民事诉讼构造格格不入。在缺乏相关配套制度的情形下,我国如果要实现诉讼资料提出方式的转型——规定失权制度,必须慎之又慎。

Since Doctrine of adducing evidence at any moment was considered as the primary cause of the delay of action,scholars in Germany and Japan started to turn their attention to Doctrine of time limit for adducing evidence,which was embodied in provision of losing-right system in legislation. In other words,according to their respective civil procedures,parties to action are restrained from presenting offensive and defensive evidentiary materials under some specific circumstances in order to prevent the delay of action. Therefore,the parties may suffer the loss of right. However,overly strict application of losing-right system will be detrimental to the guarantee of the parties' due procedural rights and the factual truth finding,which is incompatible with our present civil procedural structure. So in the absence of the related systems,we must be extremely cautious in the transition of the ways presenting evidentiary materials and further setting up the losing-right system in our country.