书面询问制度在日本的移植及其启示

The Transplantation of Written Inquiry System in Japan and Its Enlightenment

书面询问是德日民事诉讼中证人不出庭情况下的一种证据调查方法。与证人仅仅单方面提供书面证言不同,它通过书面问答的方式,尽可能实现法官与证人、当事人之间的实质交流。书面询问是直接主义、口头主义的例外,在适用条件和程序上有严格的限制,该方法与其他措施一起构成证人不出庭情况下的特殊证据调查体系。日本从德国移植该项制度并根据本国实际情况进行类型化设计,对我国相关司法问题的解决有重要启示。

Written inquiry is an investigation ot evlctence in the case that in Germany and Japan Civil Procedure. Different from written testimony provided by the witness unilaterally, written inquiry realizes the substantive exchange between judges and witnesses, parties as far as possible through the way of written question and answer. Written inquiry is an exception of direct and oral realism, and it was also limited strictly in applicable conditions and procedures, this method, together with other measures constitute the special evidence investigation system in the case that the witness does not appear in court. Japan transplants this system from Germany and carries on the stylized design according to its actual situation ,which has important enlightenment to our country to solve relevant judicature questions.