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随着我国民事司法改革的深入,程序正义在实践中逐步受到重视,特别是在两大法系呈现出相互借鉴融合的大背景下,我国《民事诉讼法》在答辩失权方面没有任何建树也一直为诸多学者所诟病,学者认为,答辩失权制度的建立有利于保障原被告双方诉讼权利的平等,防止被告在庭审中搞诉讼突袭,造成诉讼拖延。建立答辩失权是大势所趋,因而本文从我国民事诉讼模式及传统历史文化理念、构建答辩失权制度是否能实现公正与效率的双赢、真正意义上审前程序的缺失以及证据失权制度的建立与完善出发来论证我国当前的《民事诉讼法》下暂时不适宜构建答辩失权制度。在追求实体正义的传统理念上,可通过完善证据失权制度来实现公正与效率的双赢。
With the deepening of civil judicial reform in our country, procedural justice has been paid more and more attention in practice. Especially under the background that the two legal systems have shown mutual reference and fusion, China’s “Civil Procedure Law” has not made any contribution in defending the right of defense Scholars have criticized many scholars that the establishment of the defense of the defendant’s absence of power system is conducive to the protection of the plaintiff’s equality of rights in litigation and prevention of defendants in litigation during court proceedings, resulting in delays in litigation. Therefore, this essay constructs the system of plea bargaining to realize the win-win between fairness and efficiency from the civil lawsuit model and the traditional historical and cultural conception in our country. The absence of the pre-trial procedure and the establishment of the system of evidence invalidity Perfect to prove that under the current “Civil Procedural Law” in our country, it is improper to construct the system of defense of the right of defense. In pursuit of the traditional concept of substantive justice, we can achieve a win-win outcome of fairness and efficiency by improving the system of evidence loss of authority.