公证书与书证优先主义之论

View of Notarial Certificate and Documentary Evidence Priority

"好记性不如烂笔头""最淡的墨水胜过最强的记忆"是基于长期社会生活实践的经验总结和理性认知。在民事诉讼中,便意味着作为证据的书证的稳定性、可靠性优于人证。这一认知倾向始终影响和指引着世界各国的诉讼立法,并产生了诉讼对书证的不同程度的倚重和依赖,书证优先主义便是最直接最有力的印证。两大法系在各国民事证据制度方面或多或少均有所体现,尤以法国民法典第1 341条最为典型。我国证据立法及相关司法解释中亦有一定程度表现,特别是公证书作为诉讼证据所反映的"书证优先主义"最具特色,只是在司法实践中常常被漠视和误读而产生颇多歧见。对两大法系主要国家或地区的"书证优先主义"进行比较分析,并以公证书为主要考察对象,引发对我国构建适度书证优先主义证据制度的若干思考。

Chinese sayings ＂Good memory is inferior to bad written＂ and ＂The shallowest ink is better than the strongest memories＂ mean that the stability and reliability of documentary evidence as evidence should be superior to witnesses in civil proceedings. This is the experience and rational cognition based on the practice of long-term social life. It affects the world and guides the procedural legislation, and leads to varying degrees of reliance and dependence on documentary evidence in lawsuit. Documentary evidence priority is the most direct and powerful example. Various countries of both two law systems embody it more or less in their civil evidence system, and the Section 1 341 of French Civil Code is the most typical one. In our country, evidence legislation and relevant judicial interpretations also performance to some extent and the most distinctive is notarial certificate priority. But in judicial practice, the notarial certificate priority is often overlooked, misunderstood, which leads to a lot of controversy. To illustrate the problem, we intended to inspect notarial certificate as the main target and analyzed comparatively the ＂documentary evidence priority＂ in major countries or territories of both Civil Law system and Common Law system, and considered building appropriate documentary evidence priority in evidence system in our country.