再論我國“非約束性”自認的修正

我國民事審判實務中的自認具有“非約束性”的鮮明特徵，此一狀況隨著《新證據規定》的實施亟待修正。對於自認的適用對象，應將其限縮為實體法規構成要件對應的事實及其他在訴訟中具有證明必要性的事實；對於自認的成立場域，無需將其限定為言辭辯論，而應允許當事人在起訴狀、答辯狀等訴訟文書及“非正式開庭”中作出自認；對於自認的法律效力，既應提升自認對法院的拘束力，又應注意自認的審判排除效具有相對性，還應確定自認的限制撤銷效及其例外。對非約束性自認的修正並非從域外不同制度範例中擇一從之，而是在充分理解自我與他者的基礎上，圍繞規範展開解釋論作業，導向契合中國民事審判實踐的約束性自認制度。

The system of judicial admission in China's civil trial practice has the distinct characteristic of ''non-binding'', which means that the judge has full discretion on whether the party's statement against interest constitutes a judicial admission. With the implementation of Evidence in Civil Procedures (revised in 2019), the ''non-binding'' judicial admission system is in an urgent need to be reconstructed. As for the scope of judicial admission, it is limited to the material facts which correspond to the constituent elements of the substantive law and to other facts which are necessary to prove in litigation. Besides, the procedural context of judicial admission does not need to be limited to oral hearings. In such legal documents as the statement of claim and the defence, and in ''informal court sessions'' can parties make judicial admissions as well. With regard to the legal effect of judicial admission, its binding force to the judge shall be enhanced, the relativity of preclusion effect of judicial admission shall also be paid attention to, and the revocation effect of judicial admission and the exception thereof shall be determined. The fine-tuning of non- binding judicial admission does not mean to simply choose any one of the exterritorial patterns of judicial admission and apply it, but to construct and interpret our legal norms on the basis of fully understanding China and foreign countries, and ultimately to build a ''binding'' judicial admission system in line with China's civil trial practice.