论诉审商谈主义的民事诉讼构造观——兼及对民事诉讼法修订与完善的建议

Constructivism of Civil Procedure with Argumentation on Proceedings and Trials: And Advice on Revision and Promotion of Civil Procedural Law

我国民事诉讼法正处在新一轮修订过程中,民事诉讼构造观应当引领民事诉讼、凝聚裁判共识、修补社会裂痕。基于此,可以考虑以哈贝马斯的商谈法哲学作为建构民事诉讼构造观的方法论,从而建构一种能够促进诉审之间商谈的民事诉讼程序,且以商谈来促成裁判的共识性基础。就我国目前的民事诉讼程序来看,亟须采取的修改与完善的措施,是增加规定法官的心证随时公开义务和法律观点充分阐明义务,以此来促进诉审之间的商谈,使裁判能够在诉审共识的基础上达成。

In the fact that lack of social consensus constitutes the main national conditions, the constructivism shall play a leading role to agglomerate consensus on verdicts and judgments and to patch up social rift. We may consider Habermas＇ legal philosophy of argumentation as the methodology of building up the constructivism, and thus to construct a procedure to facilitate argumentation between the proceedings and the trials, and to promote the consensus basis of the verdicts and judgments through application of such argumentation. In view of the imperfect civil procedure being enforced and executed at present, measures shall be taken urgently to modify and improve such procedure, especial- ly to regulate additionally the judges＇ obligations to make their mental testimony public at any time and to fully clarify their legal points of view, so as to promote argumentation between the proceedings and trials, and thus to easily reach verdicts and judgments on the base of the consensus of the proceedings and trials.