“当事人的陈述”的悖论——基于西北地区H县人民法院2013年部分离婚案件裁判的分析

Paradox of the “Statements of the Parties”——An analytical study in some divorce cases judgment of H Basic People's Courts in Northwestern China Mainland

通常之观点多认为"当事人的陈述"是一种证明力较低的证据,需要修改现行立法以完善相应制度,但这不只是立法调整的问题。透过对H法院若干离婚案件裁判文书的分析,我们发现这类证据恰处在诉讼证据的中心,但却是迷乱、散杂的。法院没有很好把握这类证据的运行,过多运用了其自由裁量权。当事人亦未能以一种法律所期望的理想状态行事,而是以一种"弱者的武器"的姿态运用该类证据。原因既在于生活逻辑与法律逻辑的极大差异,也在于立法、司法于结构和理念上的根本缺陷。除了重视社会域与法律域之间的沟通外,更重要的还是要赋予个体与公权对话的能力。

Most researchers argue that the weight of evidence of litigants＂ statements was very poor. So, the law needs to be amended in the future. However, the problems are more complex. Though an analytical study in the judgments and orders of an H basic people＇s court, the author find that which on the center of the application of evidence in a case exactly. But there were confused, full of paradox. On the one hand, the court didn＇t use such evidence appropriately, depending more on their discretion. On the other, the parties used these evidence as wea＇pons of weak ratber than evidence itself. Why？ First, the logic of law and everyday life are very different. Second, it＇s the drawback of idea, structure of our legal and judicial system. So, as an approach, In addition to emphasis the communication between social and legal arena, the more important thing is to give the individual rights which could defend the power of the state abuse.