论民事调查令的实践基础与规范理性

On the Practical Basis and Normative Rationality of Civil Investigation Order

民事调查令是我国历经二十多年试点的原生性证据收集制度,在规范层面存在着主观正当性、客观合理性、程序保障性、效果有效性等问题,有必要对其申请主体与命令对象、时空阶段与取证范围、签发程序与救济程序、违令后果与制裁措施予以完善。鉴于民事调查令与书证提出命令形成竞合,书证提出命令具有公平与效率价值上的优势,若参照大陆法系将取证范围扩大到第三人和书证以外的其他证据种类,那么长远来看两者可以整合为一项民事证据收集制度。依照我国充实当事人取证权利、填补法院职权取证漏洞的现实改革逻辑,民事调查令是法院将调查取证的实施权转授给律师的制度设计,具有调查取证的亲历性和能动性、实践效果的补足性之独立存在意义。因此,在防范实践理性的绝对化之后,原生性的民事调查令制度目前也可以基本实现现代化的转型。

The civil investigation order is an original evidence collection system that has been tested in China for more than 20 years. At the normative level, there are problems such as subjective legitimacy, objective rationality, procedural guarantee and effectiveness. It is necessary to improve these rules in the respect of applying subject, command object, stage of time and space, scope of evidence collection, issuance procedure,relief procedure, consequences and sanctions. At the institutional level, the order for production of documents competes with civil investigation order and has advantages of fairness and efficiency. If we refer to the civil law system and develop the collection scope to the third person and other types other than the documentary evidence, the two can be integrated into one civil evidence collection system in the future. However, in accordance with China’s realistic reform logic, namely enriching the parties’ right to obtain evidence and filling the loopholes in the court’s powers, the civil investigation order is the system designed for the court to transfer the enforcement power of evidence collection to lawyers, and has meaning of independent existence, personal experience and initiative of evidence collection and the complementary practical effect. Therefore, after preventing practical rationality from becoming absolutized, the original civil investigation order system can also basically realize the transformation of modernization.