对事实出发型与法规出发型民事诉讼划分之追问

日本民事诉讼学者中村英郎先生认为,英美法系与大陆法系民事诉讼的根本区别可表述为事实出发型民事诉讼与法规出发型民事诉讼,并由此形成各自的理论体系,导致诉讼理论借鉴的困难。分析民事诉讼制度起源及中村先生所持论据,可知有关事实出发型民事诉讼与法规出发型民事诉讼的划分基本上是一个不能充分证明的假说。民事司法活动的本质都是将现有法律用于解决目前的纠纷,都是沿着三段论的逻辑结构而展开的。

Issues On the Distinction between Litigation on Fact and Litigation on Law in the Civil Procedure

Hideo Nakamura,a Japanese scholar who is studying civil procedure put forward that litigation on fact or litigation on law in civil procedure is the essential distinction between common law system and continental law system.Different theoretical systems engendered by the above distinction result in the difficulties of borrowing theories of litigation.The division between litigation on fact and litigation on law in the civil procedure is a hypothesis which mainly can not be proved through the analysis on the origin of civil procedure and the grounds held by Mr.Nakamura.The civil litigation is going according to syllogism and its essence is to apply present law for the solution to the disputes.