附理由的否认及其义务化研究

在民事诉讼中,附理由的否认乃是与单纯的否认相对的否认形态。与单纯的否认相比,附理由的否认能有效地促进当事人之间争点的形成从而能保障法院进行充实的、有效率的证据调查。在德国、日本等大陆法系国家的民事诉讼中,附理由的否认已呈义务化之趋向。无论是其判例还是学说均强调,不负证明责任的当事人若否认对方当事人所主张的事实,必须附有理由进行具体的陈述,而单纯的否认通常被认为是不合法的从而视为承认对方当事人所主张的事实。附理由的否认义务乃是基于诚实信用原则而创设的个别性义务。为平衡双方当事人诉讼上的不利益之归属,不负证明责任的当事人履行附理由的否认义务须以对方当事人所主张的事实已合乎具体化之要求为前提。不过,在情报偏在性的事件中,应例外地承认不负证明责任的当事人对对方当事人所为的抽象的事实主张也负有附理由的否认义务。

A Research on the Denial with Reasons and Making It Become an Obligation

In Civil litigation, denial containing reasons is the negative form for the purely denial. The denial containing reasons can effectively shaped the points in disputes than the purely denial to ensure Court of Justice carrying out substantial investigation of proof effectively. The denial containing reasons becomes mandatory in the countries of continental law system, such as German, Japan. Whether the view stressed in precedent or theory, if the fact stated by the opposite side has been denied, the parties without the burdens of proof have to making a detail statement with adequate grounds, and the purely denial was commonly regarded as illegally and invalid that leads to taking the claimed fact stated by the other side as a recognized fact. The obligation of denial containing reasons is an individual obligation based on the principle of good faith and moral. To balancing the distribution the disadvantage between two parties in the lawsuit, the parties without the burdens of proof should perform the obligation of denial containing reasons upon on the fact claimed by the other side meeting the specific requirements. However, in the case when the main evidences are under one party's, it's reasonably to permit for an exception that the parties without the burdens of proof have the obligation of denial containing reasons over the fact proposal stated by the other side.