Research On The Judicial Application Of The Fictitious Self-recognition System

In 2001,the "Several Provisions of the Supreme People’s Court on Evidence in Civil Litigation" clearly stipulated the fictitious self-recognition system for the first time.The term "fiction" indicates that the system is different from the self-recognition system in the true sense.There are certain differences in the connotation and application procedures of the two,but the application effect is basically the same.At present,the fictitious self-recognition system is recognized by the civil procedure legislation of many countries(regions).As far as country’s current relevant regulations are concerned,the provisions of the fictitious self-recognition system are generally relatively simple,lacking systematic provisions on the concept,requirements,and effectiveness of the fictitious self-recognition,and in terms of procedural operation,there is a lack of effective connection and cooperation with the Dispute sorting procedure,the judge’s clarification obligation,and the loss of power system,resulting in the overall low applicability of the system and far from meeting the expectations of the system.To this end,it is particularly necessary to further explore the functions of the fictitious self-recognition system and give full play to its system effectiveness to promote the fair and efficient conduct of civil litigation,and to realize the organic unity of substantive justice and procedural justice.Based on this,this paper is divided into four chapters:Chapter 1 "Basic Theory of The Fictitious Self-recognition System".This chapter firstly defines the concept and connotation of the fictitious self-recognition system,and then analyzes the types,elements and effects of the system,so as to complete the basic overview of the fictitious self-recognition system;Secondly,systematically explain the legal basis of the fictitious self-recognition system,and find the justification basis of the fictitious self-recognition system mainly from the perspective of debate,true obligation,obligation of statement,concrete obligation and litigation promotion obligation;Finally,the function of the fictitious self-recognition system is excavated from the aspects of improving litigation efficiency and balancing procedural justice and substantive justice.The second chapter examines the status quo of country’s fictitious self-recognition system.Based on case study,this chapter systematically sorts out the judicial application status of my country’s fictitious self-recognition system from judicial practice.On this basis,it is revealed that in the judicial application of country’s fictitious self-recognition system,the specific form of fictitious self-recognition is too single,the applicable object is broad,the judge’s interpretation is not standardized,and the possibility and effect of the fictitious self-recognition recovery is not clear,etc.aspects of the problem.Then analyze the causes in depth,and conclude that the main reasons for the judicial application of the fictitious self-recognition system in our country are that the system foundation for the application of the fictitious self-recognition system is relatively weak and the operation of the fictitious self-recognition system is not systematic。The third chapter is the comparative reference of the fictitious self-recognition system of civil law system.Stones from other hills,can learn.This chapter tries to explore the basic appearance and development trend of the fictitious self-recognition system in the civil law system by examining the current situation of the legislation and judicial application of the fictitious self-recognition system in Chinese Taiwan,Germany and Japan,and make a comparative analysis of it.It focuses on the comparative analysis of the types,applicable requirements,recovery and other provisions of the fictitious self-recognition system,and refers to the provisions of the fictitious self-recognition system in the civil law system from various aspects.The fourth chapter is the basic conception of perfecting the judicial application of the fictitious self-recognition system.Based on the discussion in Chapters 1 to 3,this chapter advocates that starting from such basic principles as the principle of debate,the principle of the right to dispose of,and the principle of good faith,the principles for the application of the fictitious self-recognition system should be established,the institutional basis and theoretical basis for the development of the fictitious self-recognition system should be constructed.Then,from the perspective of improving the type of fictitious self-recognition and framing the scope of application,the judicial application requirements of the fictitious self-recognition are optimized.In addition,what is more important is the link between the proposed system and the judicial application of the fictitious self-recognition system,Starting from the proper connection between the fictitious self-recognition system and the dispute sorting procedure,the judge’s clarification obligation,and the loss of power system,then form a systematic system of the fictitious self-recognition system.