家事诉讼中法院证据调查制度研究——以我国诉讼模式的转换为背景

Survey Evidence of Family Litigation in the Court System:to Convert the Mode of Action of the Background

在我国立法和司法实践中,并没有明确家事诉讼与一般民事诉讼的区别,缺乏对家事诉讼的特殊性的考虑,尤其是在证据调查领域。在当事人主义诉讼模式下,当事人在举证不能或者遇到困难时,缺乏救济的方式和途径,法院也严格遵循一般民事纠纷的举证原则,不予主动调查。同时,法官的依职权介入容易被指责为职权主义的回归,从而有违法官中立的原则。在我国民事诉讼模式转型的背景下,家事诉讼中法院证据调查权不仅从实质正义的视角出发促进了中立原则的实现,而且弥补了当事人主义诉讼模式存在的缺陷。

In our legislation and judicial practice, since there is no clear distinction between specialized and general civil litigation family, the lack of consideration of the special nature of family litigation, particularly in the field of survey evidence. In adversary proceedings mode, when the parties can not prove or difficulties, lack of ways and means of relief, the court also strictly follow the general principles of proof in civil disputes, not to initiate investigations. Meanwhile, under the authority of the judge was accused of involvement easy return powers doctrine, which contrary to the principle of neutrality of judges. In the context of civil litigation model transformation, the Family Court of the evidence in the investigation right of action not only from the perspective of promoting substantive justice to achieve the principle of neutrality, but made up for adversary proceedings pattern defects.