证据保全制度的功能及其扩大化
许少波证据保全制度的功能及其扩大化
Functionand Its Extensionof Proof Preserving System
期刊名称：《法学研究》
期刊年份：
作者：许少波
单位：韶关学院法学院
中文关键词：证据保全;确定事实;开示证据;诉讼外解决纠纷
英文关键词：proof preserving;determination of facts;discovery of proof;settle disputes other
than litigation
中文摘要：
基于诉讼数量不断增长和现代型诉讼要求先收集证据、后提出事实主张的客观需要，为实现预防诉讼、促进诉讼、集中化审理和多元化解决纠纷之目标，两大法系各主要国家纷纷对证据保全及类似制度进行了改革，使证据保全制度除保全证据外，又具有了确定事实、开示证据和诉讼外解决纠纷的多种功能。为强化当事人举证责任，保障当事人证据收集权和证明权的实现，我国也必须扩大证据保全制度的机能，一方面增设确定事物状态和经对方当事人同意之证据保全类型，另一方面鼓励当事人在证据保全程序中就与纠纷解决相关的事项达成协议。
英文摘要：
In order to respond to the judicial resource shortage educed by more and more litigations, and to meet the requirement of modern litigations, under the prevailing idea of preventing, avoiding, simplifying and facilitating litigations, and centralizing trial and diversifying mechanisms of settling disputes, most countries in the two legal systems have simultaneously and successively made substantial revisions of their civil procedural laws. Consequently, all these endeavors have strengthened the pre-trial and pre-action procedure of civil proceedings, and the function of proof preserving system and similar ones has been transmuted from purely preserving proof into multifunction, including determination of facts, proof discovery and facilitating settlement of disputes outside the court. Meanwhile, in litigations, preservation of proof has also transformed from a special way by which the litigants passively collect evidences into an effective measure by which the litigants positively collect evidences. Ultimately, the center of civil proceedings has transferred from trial procedures to pre-trial and pre-action ones, from the certification procedures in trial to the pre-trial and pre-action proof collection ones.Compared with other countries, Chinese proof preserving system is single-typed, rigidly-termed and conservatively-functioned, which does not accord with the world current tide, and cannot satisfy the requirement of reforming civil proceedings and intensifying litigants’ burden of proof. Therefore, we should also revise our civil procedural law and extend the function of proof preserving system. On the one hand, we should introduce new types of proof preservation, when litigants have legal interests on determination of state of things, or the opposite litigant assent to, the application for proof preserving by litigants should be allowed, so that they can collect evidences sufficiently before trial. On the other hand, we should recognize the agreement concluded by litigants concerning facts, issues, proof and the whole dispute on the ground of proof preserving, and hence ultimately accomplish the goal of preventing or reducing litigations and settling disputes impartially, quickly and efficiently. Key words: proof preserving, determination of facts, discovery of proof, settle disputes other than litigation
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