论庭审笔录补正对民事庭审之冲击

Influence of Emendations of Trial Records on Civil Trial

以庭审笔录补正形式,发表书面辩论意见的情况在民事诉讼实务中多有发生。当事人在全盘了解对方当事人"底牌"和法官裁判思维的基础上,可以更为全面、准确发表辩论意见,而法官也需要以此辅助裁判观点和理由的形成。因此,以庭审笔录补正形式发表最终书面辩论意见,成为了法官和当事人"合谋共赢"的产物。从民事诉讼法理上看,该做法对辩论原则、庭审实质化和当事人诉讼权利保障产生了很大冲击。这与我国民事诉讼庭审实质化尚未有效形成、庭审笔录法律定位不清和庭审笔录补正缺乏法律约束密切相关。有鉴于此,应当强化庭审实质性,明确庭审笔录的法律定位,对庭审笔录补正进行有效约束,杜绝庭审笔录补正形式的书面辩论意见。

Written arguments are often made in the form of emendations of trial records in civil litigation practice.When they come to know inside out each other’s “cards”and the thinking of the judges,the parties can express their debating opinions more comprehensively and accurately. This is also what the judges need in forming their judgments. Therefore,expressing the final debating views in the form of emendations of trial records has become the product of a “conspired win-win” between the judges and the parties. However,from the perspective of litigation jurisprudence, this practice has had a great impact on the adversary system,trial substantiation and protection of litigant rights. The problem is closely related to ineffective trial substantiation,unclear position of court records and lack of legal restraints on emendations of trial record. In view of this,we should substantialize the trial process, define the legal position of trial records, impose restraints on trial records and ban the use of written arguments in the form of emendations of trial records.