—《民事证据规定》第7条的理论阐释

陈国欣

（早稻田大学法学研究科，日本 东京 169-8050）

【摘 要】《民事证据规定》第7条适用的核心问题是如何判断限制自认能否构成自认。因为限制自认的实践形态多样，所以《民事证据规定》第7条的理论阐释应采用类型化分析的方式。限制自认成立自认须得满足自认成立要件中的不利益性要求，此不利益性的判断应聚焦于当事人“限制主张”对其“自认主张”效力的影响。以“限制主张”的内容为标准，可以将广义限制自认分为部分自认、附理由的否认、附请求条件的自认和狭义限制自认。一般情形下，部分自认可以成立自认；附理由的否认不应成立自认；附请求条件的自认如果是原告作出的，一般不可成立自认，如果是被告作出的则可能成立自认；至于狭义限制自认，一般只有附权利受制抗辩的“自认主张”有可能成立自认。

【关键词】民事证据规定；限制自认；部分自认；附理由的否认；证明责任

【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226（2022）02-0145-14

A typological analysis on restricted self-admission——a theoretical interpretation of article 7 of the civil evidence regulations. Chen Guoxin. Graduate School of Law, Waseda University, Tokyo, 169-8050.

【Abstract】The central issue of the application of Article 7 of the Civil Evidence Regulations is how to determine whether a restricted self-admission can constitute self-admission. Because of the diverse forms of the restricted self-admission in practice, the theoretical interpretation of Article 7 of the Civil Evidence Regulations should be done by means of typological analysis. A restricted self-admission must meet the disinterest requirement for self-admission so as to be established, and the judgement of disinterest should focus on the effect of the party's "restriction claim" on the validity of its "self-admission claim". Depending on the content of the "restriction claim", generalized restricted self-admission can be divided into partial self-admission, conditional denial, selfadmission with request and restricted self-admission in the narrow sense. In general, partial self-admission should be considered as self-admission; while conditional denial should not be considered as self-admission; self-admission with request conditions generally could not be considered to be self-admission if it is made by the plaintiff, but the conclusion could be otherwise if it is made by the defendant; as for restricted self-admission in the narrow sense,only "self-admission claims" with the defense of subjection may be considered to be self-admission.

【Key Words】The civil evidence regulations; Restricted self-admission; Partial self-admission; Conditional denial; The burden of proof