民间借贷诉讼中的限制自认研究——以《民事证据规定》第7条的适用为中心

Research on restricted self-admission in private lending litigation-focus on the application of article 7 of the civil evidence provisions

民间借贷诉讼中的限制自认可分为部分自认和附条件自认两大类,后者又包括附加独立的攻击防御方法、附加否认陈述、附加其他相关事实三类具体形态。对既有规范和实践的考察表明,限制自认与相关制度如抗辩、附理由否认、先行自认之间的关系并未得到合理澄清,理论上亦有分歧。规范限制自认制度的司法适用,应当以自认可分性为原则,同时尊重自认人意思以避免对其造成非正当的不利益。具体而言,《民事证据规定》第7条的适用范围应当进行“一扩一缩”,对于先行自认中予以限制或附加条件的情形应当扩张适用。相反,对于构成附理由否认的情形则需要排除适用。法律效力的判定须由单一的裁量化效力判定模式走向形式化和裁量化相结合的二元效力判定模式,并注意限制个案中法官对自认附加事实裁量分配证明责任的行为。

The restricted self-admission in private lending litigation in China can be divided into two categories:partial self-admission and conditional self-admission.The latter includes three specific forms:independent attack and defense methods attached,denial statements attached,and other relevant facts attached.By reviewing the existing norms and practice,it is found that the relationship between restricted self-admission and relevant systems such as defense,denial containing reasons,and self-admission in advance has not been reasonably clarified,and there are also differences in theory.To regulate the judicial application of the restricted self-admission system,the principle of separability of self-admission should be adopted,while respecting the intention of the self-admission person in order to avoid unjustified disbenefits to him or her.Specifically,the scope of application of Article 7 of the Civil Evidence Provisions should be"expanded once and narrowed once",which should be expanded for cases where self-admission in advance is restricted or conditioned,and narrowed for cases that constitute denial containing reasons.The judgment of legal effect should shift from a single judgment mode of discretion to a dual judgment mode of formalization and discretion,and pay attention to the restriction of judge's behaviors such as discretionary allocation for the burden of proof of additional facts of selfadmission in individual cases.