实践与立法之背离:民事诉讼逾期举证规制机制的实证考察——以《民诉法》第65条和《民诉解释》第102条为主要考察对象

Deviation Between Practice and Legislation: An Empirical Study onthe Regulation Mechanism of Submitting Overdue Proof in Civil Procedure:Taking Article 65 of the Civil Procedure Law and Article 102 of the Judicial Interpretation of the Civil Procedure Law as the Main Objects of Investigation

在实体公正优先的制度理念下,我国建立的以证据失权为基础,训诫、罚款、费用制裁多种规制措施并存的逾期举证规制机制是符合中国国情的.但实证考察显示,该机制在实践中产生了与立法相背离的问题.究其原因,除激励不相容之外,还有逾期举证规制机制未能兼顾自身的多重价值目标、程序设计存在不足、“对抗与判定”的诉讼结构未得到充分利用等原因.为弥合实践与立法之背离,需在民事诉讼法中确立当事人诉讼促进义务,全面建立逾期提出攻击防御方法的规制机制,在程序保障下加强当事人自我责任以及进一步优化逾期举证规制机制的程序设计.

Under the system concept of prioritizing substantive justice,China has established a regulatory mechanism for submitting overdue evidence,based on evidence disqualifying,and combined with multiple regulatory measures such as admonitions,fines,and cost sanctions. The empirical investigation shows that this mechanism has deviated from the legislation in practice. The reasons are that,in addition to the incompatibility of incentives,the independent value of the regulatory mechanism for submitting overdue evidence is ignored,its own procedure design is insufficient,the litigation structure of " confrontation and judgment" has not been fully utilized,and China has not yet fully established a regulatory mechanism for submitting overdue attack defense methods. In order to bridge the deviation between practice and legislation,it is necessary to establish the litigation promotion obligations of the parties,comprehensively establish a regulatory mechanism for proposing overdue attack and defense methods,strengthen the parties’ self-responsibility under procedural guarantees and further optimize the procedure design of the regulatory mechanism for submitting overdue proof.