—基于新《民事证据规定》第 41 条的展开

占善刚 张一诺

（武汉大学法学院，武汉，430070）

【摘 要】现行立法并未明确指明私鉴定之性质，对私鉴定准用私文书证质证规则的理解与适用意见在理论上存在较多缺陷。传统学理视角下倾向于将私鉴定定性为民事证据，此种错误认知有其内在的逻辑矛盾，且限制了进一步探讨的空间与路径。实证研究表明，受立法和学理上的影响，证据定位导致私鉴定在司法实践中产生诸多适用弊端。为破解前述理论及实务困境，应当将私鉴定定性为诉讼主体所作的当事人陈述。私鉴定既是当事人事实主张的一部分，又是当事人顺应主张具体化要求的重要体现。此举不仅能够化解私鉴定与司法鉴定之间的冲突，还能够恰当地贴合司法解释规定而使一系列具体的适用规则得以明确。

【关键词】私鉴定；当事人陈述；主张具体化；司法鉴定；证据调查

【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226（2020）06-0645-15

Qualitative analysis on appraisals initiated by parties——based on the development of article 41 of the new  rules of civil evidence. Zhan Shangang, Zhang Yinuo, Law school of Wuhan University, Wuhan, 430070.

【Abstract】 The current legislation does not clearly specify the nature of appraisals initiated by the parties, and  there are a lot of theoretical defects in understanding and application of cross-examination rules on the appraisal on  private documentary evidence by parties. From the perspective of the traditional theory, appraisals intiated by parties  tend to be identified as civil evidence. This kind of wrong cognition has its inherent logic contradiction and limits the  space and path for further discussions. Under the adverse effects at the legislative and theoretical, empirical research  shows that the positioning of evidence leads to many disadvantages for applications of appraisals initiated by the parties  in judicial practice. In order to solve the above-mentioned theoretical and practical problems, the appraisal initiated by  parties should be recognized as statements made by parties. The appraisal initiated by the parties is not only a part of  the parties' factual claims, but also an important embodiment of the parties' compliance with the requirements of claims concretization. This can not only resolve the conflict between appraisals intiated by parties and judicial appraisals, but  also help clearify a series of specific applicable rules in line with the provisions of judicial interpretation.

【Key Words】Appraisal initiated by parties; Statement of parties; Claims concretization; Judicial appraisal;  Evidence investigation