Study On The System Of Admission In Civil Litigation

Admission(Gest?ndnis)is an important litigation system.However,due to the long-term influence of the Soviet doctrine and the litigation perspective of pursuing objective reality,as well as the late introduction of regulations,the research in Mainland China is still weak.In view of this,this paper will discuss the historical evolution of the system of admission and its basic theory,and make a theoretical response to the main issues on the basis of the reality of the system of admission in mainland China.In addition to the introduction,this article is divided into six chapters.The first chapter is the theory of evolution.The system of admission has emerged in the ancient Roman era at the latest,but the system of admission with modern meaning was born in Germany in the 19 th century,as a representative country of the civil law system,Japan's system of admission reflects a unique development path.Although ancient China had systems that were similar to admission,the system of admission with modern meaning began in the legal reform during late Qing Dynasty and was transformed into the regulations of Taiwan China through several times of revision.At present,Mainland China has only stipulated system of admission at the judicial interpretation level,but it has already reflected the trend of the system and academics in Germany,Japan and Taiwan China.The second chapter is the theory of nature.As early as in the German common law period,there was a debate between the school of the source of Roman law and the schoool of the "natur der Sache",the Civilprozessordnung finally adopted the view of the former school that admission is "the disposition of right in issue through abandonment of evidence".Afterwards,the rise of the theory of Wahrheitserkl?rung(Wissenserkl?rung)continued to confront each other with various theories of Willenserkl?rung,and had a profound impact on the academic circles.Nowadays,theory of Wahrheitserkl?rung(Wissenserkl?rung),Wollenserkl?rung and the dual attribute theory are in three pillars in Germany;in Japan and Taiwan China,the theory of Wissenserkl?rung is the general theory,but various theories of Willenserkl?rung have been said to be powerful.Mainland China has long been deeply influenced by the Soviet's theory of evidence,but this influence is constantly being eliminated.Based on the academic theory of extraterritorial studies,combined with the current regulations and judicial practice in Mainland China,it is advisable to interpret thelegal nature of admission as a litigation conduct of Wahrheitserkl?rung.The third chapter is the theory of elements.It is advisable to adopt the theory of four elements.As to the element of object,generally it should be main facts,but as to the obvious and inable facts as well as customs,there is still a contradiction between the theory of negative and affirmative(partially affirmative).As to the element of occasion,it is generally recognized that admission do establish in the process of oral debate while not establish outside the litigation or in the process of inquiry of the parties,but there are still contradictions regarding whether admission is able to establish in the preparation pleadings and preparation process.As to the element of unanimity,in terms of antezipiertes Gest?ndnis is concerned,there is a contradiction between the theory of affirmative as the general theory and the theory of negative,the general theory said that admission doesn't establish without quoting;in terms of the theory of equal value statements,there is still much controversy in the academic circles;In terms of the qualifizierte Gest?ndnis and denial with reason,the general theory says that admission is established in the unanimous part of the statement.As to the element of the non-interest,there are theories of possibility of losing the lawsuit,the burden of proof,no need of the non-interest element,the adjustment of qualifizierte Gest?ndnis and determination in individual case in the academis circles,the general view is that theory of the burden of proof is the general theory of Germany,while the theory of the possibility of losing the lawsuit is the general theory of Japan and Taiwan China.Based on the norms and reality of Mainland China,the facts against the obvious facts,unable facts as well as the customs should be interpreted as not be able to become the object of admission;Scope of the admission outside the litigation should be clarified,admission do not establish in inquiry of parties,then the establishment of admission in the pre-trial does not need to be "modest";the unknown or non-memory statement should not be defined as admission,and should be classified into the fiction admission;it is advisable to identify the non-interest elements according to the theory of the burden of proof.The fourth chapter is the theory of effect.It is advisable to adopt the three-effect theory which is composed of the effect of excluding trials,the effect of restricion on withdrawal and the effect of needness of proof.Verhandlungsmaxime should be interpreted as the basis for the effect of excluding trials.At the same time,it is advisable to interpret the estoppel based on trust protection as the basis for the effect of restricion on withdrawal,and to use the joint action of the other two effects as the basis for the effect of needness of proof.Based onextraterritorial academic analysis and the reality of Mainland China,as to the admission of the facts which provide the basis for the judgment of the litigation elements,except for the defense matters,should be denied its effect;in other special circumstances,the effect of admission should be specifically analyzed according to the current regulations and procedural principles;for untrue admission,type deconstruction and specific analysis should be carried out,and the theory of implied withdrawal of admission and withdrawal of claim can also be used to justify the circumstance in which admission is not compatible with the judge's intimate conviction that is consistent with the basic principles of system of admission.The fifth chapter is the theory of withdrawal.In view of the withdrawal of admission under normal circumstances,the regulations of Germany,Japan and Taiwan China are not consistent.There are also different theories including theory of two elements of "anti-reality +error",the theory of only treating the proving of anti-reality as the element,the theory of only treating the proving of error as the element,the theory of restricting the methods of attack and defense which have missed time,it is advisable for the Mainland China to adopt the theory of only treating the proving of anti-reality as the element.Whether the withdrawal of claim and denial should constitute an admission withdrawal should be made on the specific circumstances.In response to the withdrawal of admission in special circumstances,Mainland China can reconstruct the excluding illegal behaviors withdrawal by referring to the provisions on the exclusion of illegally obtained evidence.In the case of immediate withdrawal,the just establishement of admission,as well as admission in the arbitrary party change and auxiliary participation should be increased.The sixth chapter is the theory of special object.In view of the admission of indirect facts,there is a general opposition between the theory of negative and affirmative,and there are also main schools of thoughts including affirmations of conditions,important indirect facts and compromises.It is advisable for Mainland China to adopt the theory of negative.In view of the admission of auxiliary facts(mainly for the authenticity of the documentary evidence),there are theories of negative,affirmative,compromise,differential treatment,and amended negative.It is advisable for Mainland China to adopt the theory of amended negative,that is,to interpret the admission which formally aims to auxiliary facts but essentially aims to main facts as the original admission.In view of admission of rights,in terms of the pre-requisite legal relationship,there exists the confrontation among the theories of comprehensive negative,negative with restrictions,affirmative to partial effects,affirmativewith restrictions and comprehensive affirmative;in terms of non-specific concepts,there is a disagreement between the establishment of a right admission or a fact admission;in terms of using the daily legal concepts to summarize the specific facts,the general theory considers that the fact admission is established.It is advisable for Mainland China to adopt affirmative with restrictions and strictly limit its scope and effect.