证据共通原则再认识——以突袭性裁判的防止为视角

Research on the Principle of Common Evidence: from the Perspective of the Prevention of Assault Judgment

改革开放以来,传统"家事化""非讼化"诉讼体制逐渐向当事人主导型诉讼体制过渡,非约束性辩论原则逐渐向约束性辩论原则靠拢,程序保障的第三波理论兴起及制度化借鉴的浪潮在比较法研究领域方兴未艾。以此为背景,基于自由心证主义的证据共通原则的适用须更加注重对诉讼参与人的程序保障,须以突袭性裁判的防止为视角,结合共同诉讼的类型,对证据共通原则的本土适用规则进行制度化改造。

Since the reform and opening up, the trend of traditional domestic proceedings and non-contentious proceedings system have been made a transition to an adversary system, as well as permissive adversary proceedings to governing adversary proceedings. In the field of comparative law, there has been an upward trend of the theory of third-stage procedural safeguards. As a result, when we use the principle of common evidence based on the doctrine of discretional evaluation of evidence, it is of vital importance for us to emphasize litigants’ procedural rights. We should start from the prevention of assault judgment and consider the type of co-litigation to the purpose of improving our system.