再论我国“非约束性”自认的修正

Further Discussion on the Modification of“Non-binding”Judicial Admission in China

我国民事审判实务中的自认具有"非约束性"的鲜明特征,此一状况随着《新证据规定》的实施亟待修正。对于自认的适用对象,应将其限缩为实体法规构成要件对应的事实及其他在诉讼中具有证明必要性的事实;对于自认的成立场域,无需将其限定为言辞辩论,而应允许当事人在起诉状、答辩状等诉讼文书及"非正式开庭"中作出自认;对于自认的法律效力,既应提升自认对法院的拘束力,又应注意自认的审判排除效具有相对性,还应确定自认的限制撤销效及其例外。对非约束性自认的修正并非从域外不同制度范例中择一从之,而是在充分理解自我与他者的基础上,围绕规范展开解释论作业,导向契合中国民事审判实践的约束性自认制度。

The system of judicial admission in China's civil trial practice has the distinct characteristic of"non-binding",which means that the judge has full discretion on whether the party's statement against interest constitutes a judicial admission.With the implementation of Evidence in Civil Procedures(revised in 2019),the"non-binding"judicial admission system is in an urgent need to be reconstructed.As for the scope of judicial admission,it is limited to the material facts which correspond to the constituent elements of the substantive law and to other facts which are necessary to prove in litigation.Besides,the procedural context of judicial admission does not need to be limited to oral hearings.In such legal documents as the statement of claim and the defence,and in"informal court sessions"can parties make judicial admissions as well.With regard to the legal effect of judicial admission,its binding force to the judge shall be enhanced,the relativity of preclusion effect of judicial admission shall also be paid attention to,and the revocation effect of judicial admission and the exception thereof shall be determined.The fine-tuning of nonbinding judicial admission does not mean to simply choose any one of the exterritorial patterns of judicial admission and apply it,but to construct and interpret our legal norms on the basis of fully understanding China and foreign countries,and ultimately to build a"binding"judicial admission system in line with China's civil trial practice.