论拟制自认之构成及其法理——兼评《关于民事诉讼证据的若干规定》第8条第2款

拟制自认并非真正的自认,它以私法自治原则下之辩论主义和处分权主义为基础,是当事人为自主选择后之必然结果;同时,也是为实现当事人间之真正平等,并基于诚信原则的要求,对当事人不为协力和真实等义务,而科以不利后果之法律强制。其在时间、主体和客体等方面有着自己的特殊构成,我国关于拟制自认的相关规定还有待完善。

On the Condition of Admission of Fiction

The admission of fiction is not the admission. It is based on the adversary system and the creed of disposal, which is subjected to the self- governance principle of private law. Under the principle of good faith, at the same time, and for the realization of the two- parts equality, it is compulsion of disbennifit of law to the part for his failing to act cooperative and truthful. So it has itself- characteristics in the condition of the time, the subject and the object etc. The rules and regulations should be amended about the admission of fiction of China.