律师调查令制度研究

发布时间：2018-03-23 14:46

本文选题：调查取证　切入点：律师调查令　出处：《湘潭大学》2013年硕士论文

【摘要】：证据是法院对民事案件进行审理和裁判的关键和根本。随着经济的发展，我国民商事案件的当事人申请调查取证的案件也随之增加，但司法实践中当事人调查取证难的情况非常普遍，这在很大程度上侵犯了当事人调取证据的权利，也影响了当事人的举证能力，往往导致当事人陷入“有理说不清”的境地。由于现行制度根本无法保障当事人调查取证的权利，使当事人的举证能力受限而承担败诉风险，无法实现其诉讼目的，，最终使得民事诉讼追求实体公正、保障当事人合法权益的价值目标也就难以实现。由于审判方式改革的不断推进，我国法院的诉讼模式也随之逐步改革，目前正处于由过去的职权主义模式逐步向当事人主义诉讼模式过渡的阶段。“谁主张，谁举证”这一诉讼原则已成为民事证据领域的基本规则，因而当事人对自己所提出的主张负有调查、收集证据的责任。当事人的证明责任得到有效的落实与分配之后，法官调查收取证据也随之由过去的超主导包揽举证模式逐步向限制举证方向进行转变，这一转变从司法实践来看，无疑更有利于司法公正。但是我们知道，任何事物的发展都有两面性，当事人证明责任的落实，虽然大大提高了当事人调查取证的积极性，但随之也逐步突显出来了当事人举证难等各种问题。为破解这已难题，我国很多地方都相继实行了调查令制度，以进一步落实当事人的举证责任，维护当事人权益，实现司法公正。
[Abstract]:Evidence is the key and fundamental for the court to try and adjudicate civil cases. With the development of the economy, the number of cases in which the parties in civil and commercial cases apply for investigation and collection of evidence has increased. However, in judicial practice, it is very common for the parties to investigate and collect evidence, which to a large extent infringes the right of the parties to obtain evidence, and also affects the party's ability to prove evidence. Because the current system can not guarantee the right of the parties to investigate and collect evidence, so that the parties' ability of proof is limited and they bear the risk of losing the lawsuit, they are unable to achieve the purpose of the lawsuit, because the current system can not guarantee the right of the parties to investigate and collect evidence. Finally, it is difficult to realize the value goal of protecting the legitimate rights and interests of the parties because of the pursuit of substantive justice in civil litigation. As a result of the continuous progress of the reform of the trial mode, the litigation mode of the courts in our country has also been gradually reformed. At present, it is at the stage of transition from the past mode of authority doctrine to the mode of litigant litigation. "who claims that," The principle of "who adduces evidence" has become the basic rule in the field of civil evidence, so the parties have the responsibility to investigate and collect evidence for their claims, and after the burden of proof of the parties has been effectively implemented and distributed, The judge's investigation and collection of evidence has gradually shifted from the past mode of super-dominated collection of evidence to the direction of limiting proof, which is undoubtedly more conducive to judicial justice from the point of view of judicial practice. But we know that, There are two sides to the development of anything. The implementation of the burden of proof of the parties has greatly increased the enthusiasm of the parties to investigate and collect evidence, but it has also gradually highlighted various problems such as the difficulty of proving evidence by the parties. In order to solve this problem, In order to further implement the burden of proof, safeguard the rights and interests of the parties, and realize judicial justice, many places in our country have carried out the investigation order system one after another.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D926.5

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