民事诉讼中文书提出义务的司法适用研究

Study on Judicial Application of Obligations in Documents in Civil Litigation

在无特别规定时,我国民事诉讼领域'谁主张谁举证'规则下的证据收集责任往往由负证明责任一方当事人承担。在大量现代型诉讼中,举证责任人因各种原因被隔离于文书制作过程外,因不可归责于己的原因而陷于举证困难。我国民诉法相关解释虽然课以文书持有人以文书提出义务,但因其规定过于原则而无法有效指导实践操作。厘清民事诉讼中文书提出义务适用范围、程序以及违反文书提出义务的法律后果有助于文书提出义务的司法适用,有利于发现案件事实,实现实质正义。

In the absence of special regulations,the responsibility for collecting evidence under the rule of'who advocates who gives evidence'in the field of civil litigation in China is often borne by the party responsible for the burden of proof.In a large number of modern lawsuits,the person responsible for proof is isolated from the process of making the paper for various reasons,and it is difficult to prove the evidence because of the reasons that cannot be attributed to oneself.Although the interpretation of the National Lawsuit is based on the obligation of the instrument holder to file,the rule cannot be effective in guiding the practice because of its over-principle.To clarify the scope of application of the obligations in the civil litigation documents,the procedures and the legal consequences of violating the obligations of the instruments,the judicial application of the obligations of the instruments is conducive to the discovery of the facts of the case and the realization of substantive justice.