当事人陈述:比较、借鉴与重构

考察英国、美国、法国、奥地利、德国、日本、原苏联和东欧社会主义国家、我国澳门、我国台湾及祖国大陆法律中关于当事人陈述的规定,比较分析上述国家和地区如何区分证据意义上的当事人陈述与非证据意义上的当事人陈述,当事人陈述在民事证据体系中的地位、当事人陈述的证明力、如何保证当事人所作出的真实陈述等问题,就会发现当事人陈述在我国民事诉讼中的证据作用并未能得到真正发挥,因而需要通过修改《民事诉讼法》中的相关规定来激活这类证据。应当把当事人在诉讼中所作的对自己不利的陈述从证据中分离出去,作为诉讼上的自认来规定,通过设置询问当事人,把当事人陈述作为一种补充性的证据,通过规定宣誓和罚款,为当事人作出真实陈述设置事前和事后的保障机制。

The Statement of the Parties: Comparison, Reference and Reconstruction

This article makes a thorough study of the rules of the statement of the parties in the laws of the Great Britain, the USA, France, Austria, Germany, Japan, the former Soviet Union, former east-European social countries, China, Macao and Taiwan. It analyzes comparatively how the countries or regions mentioned above distinguish the statement of the parties with evidential significance from that without evidential significance. The status and weight of evidence of the parties’ statement and how to secure that the parties make a true statement are also observed in this paper. In this author’s opinion, the statement of the parties has not been fully used as evidence in China’s civil litigations. Thus the rules of the statement of the parties in the Civil Procedural Act of the PRC should be amended so as to achieve better results. We should separate from evidence those statements that are disadvantageous to the parties and regard them as voluntary admissions in a civil litigation. Parties should be questioned and their statement should be used as supplementary evidence. Furthermore, swears and fines may serve as a beforehand or an afterward security measure to guarantee the true statement of the parties.