论民事诉讼中的法官调查取证权

On the Power of Investigation and Evidence Collection of Judges in Civil Procedure

我国民事诉讼法上的法官调查取证权,无论在实体正义还是程序正义的维度都存在严重缺陷。比较法考察可以发现,德日法上对于事实和证据由谁提出的问题,在辩论主义等程序原理下作了不同的安排,而且法官的证据调查权与当事人的证据收集(取证)权是分离的(对此可以称之为分离原则)。相较于德日,我国调查取证权的特殊性表现在:它既包括事实调查权、证据调查权,又包括证据收集权,并以后者为核心。这种特殊性源于历史进程中国家治理的需要,固然有其合理性。但证据收集权并非天然就是法官职权,而且更不能与证据调查权相混同。为实现国家治理体系和治理能力现代化,司法应当更具专业性和权威性。对此应当以分离原则重构法官调查取证权,具体包括剥离法官证据收集权及事实调查权,并扩张法官证据调查权,从而实现程序正义与实体正义的双重提升。

In China’s civil procedure law, the power of investigation and evidence collection of judges has serious defects in both substantive justice and procedural justice. A comparative study reveals that German law and Japanese law have different arrangements for the problem in concerning who raised facts and evidence in different procedural principles, such as debating doctrine and the power of investigating evidence and right of collecting evidence in Germany and Japan are separated(It can be called‘ the principle of separation’). Compared with Germany and Japan, the particularity of China’s power of investigation and evidence collection lies in that it includes the power of fact investigation, evidence investigation and evidence collection, with the latter as the core. This particularity comes from the need of state governance in history, so it is certainly reasonable. However, the power of evidence collection is not naturally the judge’s authority, and it cannot be confused with the power of evidence investigation. In order to realize the modernization of the national governance system and governance capacity, the judiciary should be more professional and authoritative. Therefore, we should reconstruct the judge’s power of investigation and evidence collection according to the principle of separation, which includes stripping the judge’s power of obtaining evidence and the power of fact investigation, and expanding the judge’s power of investigation of evidence, to realize the dual promotion of procedural justice and substantive justice.