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民事诉讼法规定的庭外作证,其程序功能已经异化为降低司法成本为主,弱化了证据调查作用,致使庭外证言的正当性、可信性严重不足,程序运作流于形式。相应的制度完善应当坚持证人调查为中心的转向,将庭外作证的条件、作证方式两部构造模式,充实为条件、作证方式、调查措施三部构造模式,以使庭外作证程序功能回归到事实查明的根本。通过委托调查等手段扩充证人调查的司法资源,针对不同庭外作证方式运用直接与间接的证人调查措施,为庭外作证情况下各项程序价值的平衡提供有效的制度保障。
The procedural functions of alienation testified in the Civil Procedure Law have been alienated to reduce the judicial cost, which has weakened the role of evidence investigation. As a result, the legitimacy of the testimony outside the court is seriously lacking in credibility and the procedure is mere formality. The corresponding system improvement should insist on the turning of witness investigation as the center. The two modes of testifying the conditions and testimony of the court will be enriched as the conditions, testimony and investigative measures, so that the functions of the court testimony will be returned to The facts of the investigation. By means of investigation and investigation, the judicial resources of witness investigation are expanded. The direct and indirect investigation of witnesses for different forms of court testimony is used to provide effective system guarantee for the balance of the value of the various procedures under the circumstances of testimony outside court.