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源于英美法系的司法认知制度被世界许多国家立法所吸纳并已步入我国制度移植的空间。我国民事诉讼法未明确规定司法认知,仅司法解释略有涉及。但作为法官在审判中不可避免地要使用事实认定方法,我国在司法认知方面绝非一片空白。因此,很有必要全面检视我国司法认知现状,以为合理借鉴提供起点参数。从立法层面讲,我国现有的关于司法认知的法律规范存在着立法位阶偏低、定性模糊以及缺乏程序规定等不足;从司法层面讲,则存在着法官怠于司法认知、迷信司法鉴定而轻视司法认知的问题。究其原因,该种状况的形成与我国证据虚无的传统理念、超职权主义的诉讼模式和社会发展的相对落后直接相关。
The judicial cognition system originating from Anglo-American legal system has been absorbed by the legislation of many countries in the world and has entered the space of transplanting our system. China’s civil procedure law does not clearly stipulate the judicial cognition, and only the judicial interpretation is slightly involved. However, as a judge inevitably needs to use the fact-finding method in the trial, our country is by no means a blank in judicial cognition. Therefore, it is necessary to review the status quo of judicial knowledge in our country in an all-round way so as to provide a starting point for reasonable reference. At the legislative level, the existing legal norms on judicial cognition in our country have some problems, such as the low rank of lawmaking, the vagueness of the law and the lack of procedural provisions. From the judicial aspect, there are some problems such as the judge lagging in the judicatory cognition and superstitious judicature Identification and neglect of judicial awareness of the problem. The reason is that the formation of this kind of situation is directly related to the traditional concept of evidencelessness in our country, the litigation mode of over-authority and the relative backwardness of social development.