论民事诉讼上自认的性质

The Theory of Civil Litigation on the Nature of Identity

自认的性质问题一直在大陆法系国家和英美法系国家存有较大争议。一般英美法系国家将自认规定为传闻证据,认为它是证据的一种;大陆法系国家普遍认为自认是一种诉讼行为。我国学者对此也存在较大分歧:有的认为自认是当事人陈述,有的认为自认是证据规则,有的认为自认是一种诉讼行为。目前国内外学者的争论主要从两个方面介入:一是根据自认与证据的关系来分析自认的性质;二是把自认分为诉讼上的自认与诉讼外的自认,并对自认的性质进行分析。在介绍各种主流学说的基础上,分析自认的性质。

There is a big controversy about the nature of admission in the mainland legal system and the British and American legal system countries. Basically, the UK-US legal system countries regard admission as one of evidence which is stipulated in hearsay evidence, while the mainland legal system countries generally consider it to be a litigation action. However, Chinese scholars also hold quite different opinion about this. Some scholars believe that admission is the litigant statement, while others think it as evidence rule or a lawsuit behavior. At present, the do- mestic and foreign scholar＇s arguments is mainly involved from two aspects： one is analyzing the nature of the ad- mission based on the relationship between admission and evidence ; another is analyzing the nature of the admission before dividing the conception of admission into litigation confession and beyond litigation confession. This article intends to analyze the nature of admission on the basis of introducing a variety of mainstream theory.