主张的具体化研究
占善刚主张的具体化研究
A Research on the Specification of Proposals
期刊名称：《法学研究》
期刊年份：
作者：占善刚
单位：武汉大学法学院
中文关键词：主张责任;主张的具体化;证明主题;摸索证明
英文关键词：burden of proposition;specification of proposals;subject of proof
中文摘要：
在采行辩论主义运作方式的民事诉讼领域，基于主张责任之法理，当事人必须积极地向法院主张于己有利的法律要件事实。当事人的主张只有符合具体化的要求，才能认为是适格的，也才能认为当事人已尽主张责任。主张的具体化不仅要求当事人作出具体的陈述，而且禁止当事人作纯为恣意的、射倖式的陈述。主张具体化的正当性依据在于保障法院的审理利益及对方当事人的防御利益。为使法院能有效判断当事人的主张是否具有证据调查的必要性，避免产生预断，主张的具体化应以满足法院的裁判重要性审查为基准。在情报偏在性事件中，应缓和主张具体化的要求，允许当事人为抽象的事实主张，以求当事人之间的实质公平。
英文摘要：
In the domain of civil procedure that belongs to the adversary proceedings, based on the jurisprudence of the burden of proposition, the party should raise legal elementary facts to the court actively. Only when the party’s proposals correspond with the requirement of specification, can they be taken on as proper proposals, and only then has the party fulfilled his duty of specification. The specification of proposals requires the party to state specifically, and meanwhile forbids discretionary or aleatory statements. How the requirement of specification was established in Germany and Japan are different. In Germany, it was established by the precedents in the period of Empire Court and Federal Court. While in Japan, it’s generally considered that §258 (1) of its former Civil Procedure Code and §180 (1) of its current one declare or imply the request that the party’s proposals should be specific. The significance or theoretical foundations of the specification of proposals are to secure the trial interest of the courts, the defensive interest of the other party, and also the due interest of a third party as a means of proof. In order to avoid prejudication and enable the court to decide effectively whether the party’s proposals need evidence investigation or not, proposals should be specific enough to enable the court to decide whether they have enough importance for judgment. As the distribution of the burden of proposition don’t always accord with the party’s ability of proposition, in the cases when the main evidences are under one party’s control, we should assuage the requirement of specification and permit the other party to state abstractly, so as to strive for substantial justice. To ensure our courts to investigate the evidence convergently and substantially, to protect the defensive interest of the party who don’t bear the burden of proof, to limit the issues between the parties effectively, and to avoid litigation delay, our Civil Procedure Law should take examples from the precedents and theories about the specification of proposals in Germany and Japan, and stipulate clearly that the party undertakes the obligation to make his proposals specific.
全文阅读： 点击下载
