民事证据交换制度价值实现的困境与出路

Dilemma in Realizing the Value of Civil Evidence Exchange System and Ways out

证据交换制度在司法解释的“庇护”下经过10年的实践终于上升到法律层面。证据交换制度给双方当事人提供了平等对抗的诉讼武器,是两造对抗的提前,能减少庭审证据、事实突袭的发生,保障程序公正和实现庭审实质化。然而民事诉讼法律规范对“唯事实论”表现出过分的偏爱和追求,如庭审中可以提出新证据。尽管法律和司法解释对新证据进行了限定,但也在为其被采纳提供合理的空间。在证据交换程序价值被严重压缩的法律现状内,构建完备的相关规则和配套程序以彰显其固有价值是非常必要的。

The evidence exchange system regulated in form of judicial interpretation has finally upgraded to legislative level after a decade of practice. The evidence exchange system, which has moved up the confrontation between two parties, can provide litigation weapon to both parties for equal confrontation, thus reducing sudden evidences and facts in court trial and guaranteeing the procedural justice and substantial trial. However, as the legal norms for civil litigation are showing excessive preference to "factualism", it is permissible for the parties to raise new evidence in court trial. Although the law and judicial interpretation have restrictions on raising new evidence, they also leave legitimate space for the adoption of new evidence. Within the legal status quo where the value of the evidence exchange procedure is severely lowered, it is necessary to construct complete relevant rules and supporting procedures to demonstrate its inherent value.