言词辩论的全部意旨研究——德国、日本的判例、学说之考察及其启示

A Study of Full Meanings of Oral Argument: Based on Cases & Theories of Germany & Japan's

在民事诉讼中,依自由心证主义之本旨,受诉法院必须在斟酌证据调查的结果以及言词辩论的全部意旨的基础上认定案件事实。作为适法地呈现于言词辩论中的证据调查的结果以外的诉讼资料,言词辩论的全部意旨不仅能补充证据调查,而且能单独作为受诉法院认定案件事实的根据。这不仅合乎民事诉讼中法官心证形成的实际,也契合民事诉讼中法官认定案件事实之规律。为防止法官恣意地进行事实认定并担保事实认定之客观性,言词辩论的全部意旨单独作为事实认定的根据应以辅助事实及不重要的间接事实为限。受诉法院依言词辩论的全部意旨认定案件事实时,虽无须在裁判理由中对此予以具体的说示,但至少应能从诉讼记录中明了言词辩论的全部意在本案中乃何所指。

In civil litigation, a trial court, while exercising its discretion, must find the fact based on in- vestigation of evidence and full meanings of oral argument. As a means to present legal reasons to the court a- part from witness examination, oral argument with its full meanings will not only add to the effect of investiga- tion of evidence, but also can serve alone as ground for the court to find the fact, which is in consistent with re- ality of free evaluation of evidence, and the praxis of judges＇ finding the fact. To prevent judges from abuse of fact-finding power and ensure fact objectively found, while oral argument with its full meanings alone serving as ground for fact finding, the fact found should limited to auxiliary or indirect one. While finding fact under the full meanings of oral argument, the trial court, though need not make specific statement in the opinions, shall enable people to know what the full meanings of the oral argument are from records of the case.