民事证据契约相关问题研究——以协同主义理论重构为基础

Study on the Problems Related to Civil Evidence Contract: Based on the Reconstruction of Synergy Theory

我国民事诉讼构造的趋势为协同主义,证据契约的研究应于此前提下展开。协同主义要求诉讼各方协同发现事实,合理分配诉讼权限。因此,证据契约应囊括三方主体,除却当事人外,还应列裁判法官为监督、审查及阐明主体;证据契约的效力应以权限划分合理与否为标准,排除牵涉证明标准、证明力、证明责任等因素的合意之效力。惟有如此,证据契约制度方与法制体系相契合。

Since the tendency for China＇s Civil litigation structure is to adopt Synergy Theory, the study of evidence contract should be carried out based on this. Under the Synergy Theory, the litigation parties should collaborate to find the fact and the allocation of litigation rights should be rational. Therefore, the evidence contract should include the judge as the third party for supervision, review and clarification. The evidence contract should be based on the rationality of the rights allocation, not on the efficacy of consensus involving factors such as the standard, degree and burden of proof. Only in this way, the evidence contract system can correspond to legal system.