论民事诉讼中的协同主义

On the Cooperative System in Civil Procedure

协同主义在我国要从理想变为现实,学界的研究必须实现科学转型。研究重点应从协同主义的模式之争,理想与现实之争等偏理论性的研究转向理想如何变为现实,如何建构中国特色的协同主义和如何保障我国协同主义正常运行的研究。法律对诉讼三方的权利义务要重新分配,当事人负有促进诉讼的义务,法官负有释明的义务,违反义务应承担相应的责任。根据协同主义的要求,在诉答阶段原告应提供能够支持其诉求的证明案件主要事实的证据,被告要对原告的主张表明态度,否认原告的主张应说明理由。法官要对原被告的诉答和质证予以必要的释明,诉讼三方协同确定争点、排除疑点,提升诉讼的透明度,以看得见的方式实现司法公正。

For the cooperative system to change from ideal to reality in our country, academic research must achieve a scientific transformation. The research focus should be shifted from the theoretical research such as the contention of the model and the contention between ideal and reality of the cooperative system to the research focusing on the application of how the ideal becomes reality and how to construct the cooperative system with Chinese characteristics and how to ensure the normal operation of the cooperative system in China. The law should redistribute the rights and obligations of the parties and the judge in the lawsuit. The parties should have the obligation to promote the lawsuit, and the judge should have the obligation to explain. And those who violate the obligation should bear the corresponding responsibility. In the pleading stage, the plaintiff should provide evidence that can support his claim and prove the main facts of the case. The defendant should express his attitude to the plaintiff’s claim and explain the reasons for denying the plaintiff’s claim. The judge should give necessary clarification of the parties’ pleading and cross-examination. The parties and the judge should coordinate to determine the disputes, eliminate the doubts, enhance the transparency of the lawsuit and achieve judicial justice in a visible way.