家事诉讼证据规则的反思与重构

Reflection and Reconstruction of the Rules of Evidence in Family Litigations

家事诉讼具有公益与私益、法律与伦理复合的特点,注重对于案件客观真实的追求,使其与以财产纠纷为主的普通民事诉讼具有不同的诉讼理念。家事诉讼应采纳限制的辩论主义审理原则,该原则支配下的证据规则亦应独立于普通民事诉讼。目前我国相关实践中两种证据规则在适用上并无二致,导致家事诉讼目的难以有效实现。限制的辩论主义原则在尊重当事人程序主体地位和处分权的基础上,强调法院的职权行使,认为法院在事实主张和证据收集方面可以不受当事人诉讼行为的限制,促使当事人和法院之间相互协力。除家事身份类案件无法适用主观证明责任分配规则外,证明责任分配原则在家事案件中亦可适用。有鉴于此,应当区分家事案件类型,建构以高度盖然性为基准、以排除合理怀疑标准和优势证据标准为辅助的多元化证明标准体系。

Family litigation, with the characteristics of involving both public interests and private interests as well as law and ethics, focuses on the objectivity and truthfulness of cases, which makes it have dif- ferent litigation concepts from ordinary civil litigations mainly involving property disputes. The restrictive ad- versary doctrine should be adopted in family litigations, and the rules of evidence governed by this doctrine should also be independent of that in ordinary civil litigations. However, at present, thee is no obvious difference in the application of such two rules of evidence in relevant practices in China, which makes it dif- ficult to achieve the propose of family litigations effectively. On the basis of respecting litigants＇ procedural subject status and rights of disposition, the restrictive adversary doctrine emphasizes the exercise of the court ＇s powers. It believes that the court can go beyond the restrictions of litigants＇ litigating activities to find the facts and collect evidences, thus promoting the mutual cooperation between litigants and the court. Except some family cases concerning identity to which the rule of subjective burden of proof cannot be applied, the principle of burden of proof can be applicable to family cases. Therefore, it is necessary to distinguish the types of family cases and establish a system of diversified standards of proof which is based on the high degree of probability and supported by the standard of ＂beyond reasonable doubt＂ and the standard of prepon- derance of evidence.