我国书证提出命令制度的研究与展望

The Research and Prospect of the Order System of Documentary Evidence in China

摘要: 民事诉讼案件中的证据审查过程，由于民事法律关系的特殊性以及案件当事人的经济能力、社会角色以及掌握证据能力存在较大差距，导致关键性证据往往处于其中一方当事人的控制之下，另一方当事人几乎很难甚至无法获得所需要的重要证据。为解决这种证据偏在现象，书证提出命令制度在我国逐步发展并完善起来，但仍然存在主客体范围不恰、申请程序存在问题等缺陷。本文通过检视我国司法现状，充分分析立法原理，通过建议将第三人纳入主体范围、放宽书证载明内容、增加制裁手段等措施，使得我国书证提出命令制度趋于完备，从而解决证据偏在问题，最大限度地保护当事人及案外第三人的证据收集和举证质证权利，实现程序正义与实体正义的统一。

Abstract: In the process of evidence review in civil litigation cases, due to the particularity of civil legal relations and the large gap between the parties’ economic capacity, social role and ability to master evidence, key evidence is often under the control of one party, and the other party is almost difficult or even unable to obtain the important evidence needed. To solve this phenomenon of evidence bias, the documentary evidence order system has gradually developed and improved in China, but there are still some defects, such as inappropriate scope of subject and object, and problems in application procedures. By reviewing the judicial status quo in China, fully analyzing the legislative principles, and proposing measures such as including the third party in the scope of the subject, relaxing the content of documentary evidence, and increasing sanctions, this paper makes our documentary evidence order system more complete, so as to solve the problem of evidence bias, maximize the protection of the rights of parties and third parties outside the case to collect evidence, provide evidence and cross examine evidence, and achieve the unity of procedural justice and substantive justice.