关于民事诉讼中“新的证据”之思考

Thinking of "New Evidence" in Civil Procedure Law

"新的证据"是民事诉讼证据制度中备受争议的问题,也是与举证时限制度具有密切联系的概念。理论界和实务界在说明新的证据之内涵时常常脱离举证时限制度,只按照法律规定生搬硬套,未能明晰其立法缘由,导致"新的证据"被滥用。从大陆法系之新的攻击防御方法来看,"新的证据"之功用在于平衡失权制度所带来的实体与程序之矛盾,其内涵应当从逾期举证与诉讼迟滞之因果关系以及当事人逾期举证之可归责性的视角进行界定。

＂The new evidence＂ is a controversial issue in the evidence system of the civil procedure, and it is also a concept which is closely related to the time limit system of evidence. When the circles of theory and practice explain the connotation of the new evidence, the connotation is often divorced from the system for adducing evidence in limited time. That it just comply with the legal rules by rote, and it failed to clear the legislative reasons, leads to new evidence indiscriminately.Combined with the Continental law system of the new methods of attack and defense, the function of the new evidence is actually in contradiction to balance the entity and the procedure of the loss of rights system. The connotation of the new evidence should be classified from causal relationship of overdue burden and litigation retardation, and the relationships between the parties overdue burden of proof.