试论民事诉讼中的拟制自认

拟制自认可以分为不争执型拟制自认、不知陈述型拟制自认和消极行为型拟制自认。辩论主义、当事人真实义务、陈述义务和具体化义务、诉讼促进义务、经验法则等共同构成拟制自认的法理基础。当事人经法官释明后仍放弃对不利主张进行争执应承担拟制自认的不利后果,并不许追复;当事人对于应该知悉的事实作不知陈述构成拟制自认,但允许其在本审程序结束前追复;当事人的某些消极诉讼行为亦可构成拟制自认,但应从严认定,且一般不许追复。

Research on Implied Admission

Implied admission can be divided into implied admission without debate,implied admission with vague statement and implied admission with passive behavior.The theoretical foundation of implied admission consists of the adversary system,the true obligation of parties,the obligation of concretion,and the obligation to hasten proceeding as well as the principle of illustration together.If the party doesn't defend for himself on the adverse arguments when the judge has illustrated them,then the party cannot object.If the party states that he doesn't know what should be known,the statement forms implied admission which can be objected to before the proceeding is completed.Strictly identified,some passive conducts of the party can also compose implied admission,which generally cannot be objected to.