民事證明責任基礎理論探新
發(fā)布時間：2018-08-22 14:24
【摘要】：民事證明責任問題是民事法律及民事訴訟活動中的核心問題,它被學術界和實務界公認為民事訴訟活動的脊梁。百年以來,英美法系與大陸法系國家的諸多學者對證明責任問題進行了深入的研究,關于證明責任性質、結構、分配三個方面的研究成果尤為豐富。證明責任分層理論的提出,是證明責任理論研究領域的一次重大突破：證明責任分層理論將證明責任劃分為主觀證明責任和客觀證明責任兩層,這一理論使得學界對證明責任的認識進一步深化,并在一定程度上化解了學界對證明責任性質的爭議。證明責任分層理論僅僅是對證明責任進行了理論上的劃分,未能充分考慮到證明責任制度的運行是一個動態(tài)的過程。同時,證明責任分層理論的提出,使得證明責任的原有術語也不再能適應新興理論的要求。證明責任的分配是證明責任制度的關鍵,“法律要件分類說”及其修正學說則是解決這一關鍵問題的有力武器。然而中國關于證明責任分配的立法與司法均存在著較多的不足,證明責任分配立法對相關理論成果的體現(xiàn)較少,且未能明確區(qū)分主客觀證明責任的區(qū)別。立法上的不足、法官理論水平與業(yè)務能力的參差不齊,共同導致了司法活動中證明責任制度適用不規(guī)范的現(xiàn)狀。 雖然近代以來對證明責任的理論研究發(fā)生了較大的發(fā)展與進步,但不得不承認的是,證明責任基礎理論仍然存在著諸多不盡人意之處。其中證明責任術語的運用、證明責任制度的動態(tài)性、證明責任時間要素的重要性、證明責任分配的理論與實踐等方面均需完善： 1.現(xiàn)有的證明責任術語不再能滿足現(xiàn)代證明責任理論的要求。證明責任術語具有高度的學術性和抽象性,但在現(xiàn)代證明責任理論下無法涵蓋證明責任的全部含義,既不符合立法中法律語言嚴謹、簡明的要求,也不易被法官、社會公眾所認知和運用,在理論研究領域中更起著誤導性作用并阻礙著證明責任理論的發(fā)展。在理論研究領域,應當采用創(chuàng)造或引進新術語、形成新的術語使用習慣、重新定義現(xiàn)有術語等手段加以彌補；在法律運行當中則不宜采用抽象性、學術性強并具有誤導性的術語,在恰當?shù)男g語被廣泛接受前,可使用更直白而簡明的方式,在法律中對證明責任制度加以規(guī)定。 2.證明責任是一個動態(tài)的過程,而不是靜態(tài)的理論。證明責任分層理論是關于證明責任結構問題的理論學說,而忽視了證明責任的運行實際上是一個動態(tài)的過程。從動態(tài)的視角來看,證明責任分層理論的兩個層次在邏輯上并不能嚴密對接,因而有必要增加一個“進行證明”的新層次方顯完善。證明責任制度的運行是動態(tài)的,而時間因素則規(guī)制著其運行過程,并對證明責任制度的運行發(fā)揮著不可小覷的作用,因而必須給予足夠的重視。證明責任制度運行中的不同階段對應著司法活動中的不同時間,這些時間規(guī)制著證明責任的存續(xù),規(guī)定著證明責任的發(fā)生、變更和終止,規(guī)制著證據(jù)的效力,影響著證明責任的最終確定。所有的規(guī)制著證明責任制度運行的時間因素,被統(tǒng)稱為證明責任的時間要素。 3.證明責任分配的理論及其運用仍有待深入探討�，F(xiàn)代證明責任理論中,法律要件分類說及其修正學說占據(jù)著通說地位,同時還存在著危險領域說、蓋然性說、損害歸屬說等基于對規(guī)范說的反駁而提出的頗具影響力的學說。在證明責任分配原則之外,還存在著證明責任倒置、免除、證據(jù)契約等例外情況。然而證明責任分配理論的體系性仍然很弱,應當以修正規(guī)范說作為基本原則,特定情況下以反規(guī)范說補救規(guī)范說的缺陷,確立證明責任分配的例外情況,以加強證明責任分配理論的體系性。中國證明責任分配立法缺少原則性規(guī)定,對不同層面意義上的證明責任規(guī)定不明確。因而應當在立法中選用合理的、體系化的證明責任分配理論,并明確實體法與程序法、制訂法與司法解釋的分工,進而形成體系嚴密、結構完整的證明責任分配立法體系。證明責任分配在司法活動中才具有直接而現(xiàn)實的意義,證明責任的動態(tài)性和立法上的不足,對法官的業(yè)務能力提出了嚴峻的考驗。因而應當在充分認識到司法活動中證明責任分配的動態(tài)性、完善證明責任分配立法的同時,提高法官的理論知識和審判技能,才能更好地完成證明責任的分配。
[Abstract]:The burden of proof in civil law and civil litigation is the core issue, which has been recognized as the backbone of civil litigation by academia and practitioners. Over the past century, many scholars in Anglo-American law system and continental law system have conducted in-depth research on the burden of proof, focusing on the nature, structure and distribution of the burden of proof. The Layered Theory of burden of proof divides the burden of proof into subjective burden of proof and objective burden of proof. The theory of delamination of burden of proof only divides the burden of proof theoretically, failing to fully consider that the operation of the burden of proof system is a dynamic process. At the same time, the theory of delamination of burden of proof put forward, so that the original terms of burden of proof can no longer adapt to the new theory. The distribution of burden of proof is the key to the system of burden of proof, and the theory of classification of legal elements and its revision is a powerful weapon to solve this key problem. Lack of legislation and uneven theoretical level and professional ability of judges lead to the present situation of irregular application of burden of proof system in judicial activities.
Although great progress has been made in the theoretical study of the burden of proof since modern times, it has to be admitted that there are still many unsatisfactory aspects in the basic theory of the burden of proof. Among them, the use of the terms of the burden of proof, the dynamic nature of the burden of proof system, the importance of the elements of the time of the burden of proof, and the distribution of the burden of proof. Both theory and practice need to be improved.
1. The existing terms of burden of proof can no longer meet the requirements of the modern theory of burden of proof. The terms of burden of proof are highly academic and abstract, but they can not cover all the meanings of burden of proof under the modern theory of burden of proof. They do not meet the requirements of strict and concise legal language in legislation, nor are they easy to be recognized by judges and the public. Knowledge and application play a more misleading role in the theoretical research field and hinder the development of the burden of proof theory. In the theoretical research field, new terminology should be created or introduced to form new habits of terminology, redefine existing terminology and other means to make up for it; in the legal operation, it is not appropriate to use abstract, academic strong. And misleading terminology, before the appropriate terminology is widely accepted, can be used in a more straightforward and concise manner to provide for the burden of proof in the law.
2. The burden of proof is a dynamic process, not a static theory. The theory of burden of proof is a theoretical theory about the structure of burden of proof, but neglects that the operation of burden of proof is actually a dynamic process. Therefore, it is necessary to add a new level of "proof" to perfect the system. The operation of the burden of proof system is dynamic, while the time factor regulates its operation process, and plays an important role in the operation of the burden of proof system. Corresponding to the different time in judicial activities, these times regulate the existence of the burden of proof, stipulate the occurrence, change and termination of the burden of proof, regulate the effectiveness of evidence, and affect the final determination of the burden of proof.
3. The theory and application of the distribution of burden of proof need to be further discussed. In the modern theory of burden of proof, the theory of classification of legal elements and its revision occupies a general position, and there are also some influential theories based on the refutation of normative theory, such as the theory of dangerous areas, the theory of probability and the theory of attribution of damage. In addition to the principle of allocation, there are exceptions such as inversion of burden of proof, exemption, evidence contract, etc. However, the system of the theory of allocation of burden of proof is still very weak, so we should take the theory of revising norms as the basic principle, and under specific circumstances, we should remedy the defects of the theory of norms with the theory of anti-norms, establish the exceptions to the distribution of burden of proof in order to strengthen the China's legislation on the distribution of burden of proof lacks the stipulation of principle, and the stipulation of burden of proof in different levels is not clear. Therefore, we should choose a reasonable and systematic theory of distribution of burden of proof in legislation, make clear the substantive law and procedural law, draw up the division of labor between law and judicial interpretation, and form a strict system. The distribution of burden of proof in judicial activities is of direct and realistic significance. The dynamic nature of burden of proof and the inadequacy of legislation have put forward a severe test to the professional ability of judges. Therefore, we should fully realize the dynamic nature of the distribution of burden of proof in judicial activities and improve the burden of proof. The distribution of burden of proof can be better accomplished by improving the judges'theoretical knowledge and judicial skills while enacting the legislation of allotment.
【學位授予單位】：山東大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D915.2
本文編號：2197363
[Abstract]:The burden of proof in civil law and civil litigation is the core issue, which has been recognized as the backbone of civil litigation by academia and practitioners. Over the past century, many scholars in Anglo-American law system and continental law system have conducted in-depth research on the burden of proof, focusing on the nature, structure and distribution of the burden of proof. The Layered Theory of burden of proof divides the burden of proof into subjective burden of proof and objective burden of proof. The theory of delamination of burden of proof only divides the burden of proof theoretically, failing to fully consider that the operation of the burden of proof system is a dynamic process. At the same time, the theory of delamination of burden of proof put forward, so that the original terms of burden of proof can no longer adapt to the new theory. The distribution of burden of proof is the key to the system of burden of proof, and the theory of classification of legal elements and its revision is a powerful weapon to solve this key problem. Lack of legislation and uneven theoretical level and professional ability of judges lead to the present situation of irregular application of burden of proof system in judicial activities.
Although great progress has been made in the theoretical study of the burden of proof since modern times, it has to be admitted that there are still many unsatisfactory aspects in the basic theory of the burden of proof. Among them, the use of the terms of the burden of proof, the dynamic nature of the burden of proof system, the importance of the elements of the time of the burden of proof, and the distribution of the burden of proof. Both theory and practice need to be improved.
1. The existing terms of burden of proof can no longer meet the requirements of the modern theory of burden of proof. The terms of burden of proof are highly academic and abstract, but they can not cover all the meanings of burden of proof under the modern theory of burden of proof. They do not meet the requirements of strict and concise legal language in legislation, nor are they easy to be recognized by judges and the public. Knowledge and application play a more misleading role in the theoretical research field and hinder the development of the burden of proof theory. In the theoretical research field, new terminology should be created or introduced to form new habits of terminology, redefine existing terminology and other means to make up for it; in the legal operation, it is not appropriate to use abstract, academic strong. And misleading terminology, before the appropriate terminology is widely accepted, can be used in a more straightforward and concise manner to provide for the burden of proof in the law.
2. The burden of proof is a dynamic process, not a static theory. The theory of burden of proof is a theoretical theory about the structure of burden of proof, but neglects that the operation of burden of proof is actually a dynamic process. Therefore, it is necessary to add a new level of "proof" to perfect the system. The operation of the burden of proof system is dynamic, while the time factor regulates its operation process, and plays an important role in the operation of the burden of proof system. Corresponding to the different time in judicial activities, these times regulate the existence of the burden of proof, stipulate the occurrence, change and termination of the burden of proof, regulate the effectiveness of evidence, and affect the final determination of the burden of proof.
3. The theory and application of the distribution of burden of proof need to be further discussed. In the modern theory of burden of proof, the theory of classification of legal elements and its revision occupies a general position, and there are also some influential theories based on the refutation of normative theory, such as the theory of dangerous areas, the theory of probability and the theory of attribution of damage. In addition to the principle of allocation, there are exceptions such as inversion of burden of proof, exemption, evidence contract, etc. However, the system of the theory of allocation of burden of proof is still very weak, so we should take the theory of revising norms as the basic principle, and under specific circumstances, we should remedy the defects of the theory of norms with the theory of anti-norms, establish the exceptions to the distribution of burden of proof in order to strengthen the China's legislation on the distribution of burden of proof lacks the stipulation of principle, and the stipulation of burden of proof in different levels is not clear. Therefore, we should choose a reasonable and systematic theory of distribution of burden of proof in legislation, make clear the substantive law and procedural law, draw up the division of labor between law and judicial interpretation, and form a strict system. The distribution of burden of proof in judicial activities is of direct and realistic significance. The dynamic nature of burden of proof and the inadequacy of legislation have put forward a severe test to the professional ability of judges. Therefore, we should fully realize the dynamic nature of the distribution of burden of proof in judicial activities and improve the burden of proof. The distribution of burden of proof can be better accomplished by improving the judges'theoretical knowledge and judicial skills while enacting the legislation of allotment.
【學位授予單位】：山東大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D915.2
【參考文獻】
相關期刊論文 前10條
1 李浩;英國證據(jù)法中的證明責任[J];比較法研究;1992年04期
2 宋朝武;;證明責任倒置新論[J];證據(jù)科學;2007年Z1期
3 陳界融;;證明負擔動態(tài)論研究[J];證據(jù)科學;2008年01期
4 葉自強;;我國舉證責任概念的模糊性問題[J];證據(jù)科學;2010年06期
5 胡學軍;;從“抽象證明責任”到“具體舉證責任”——德、日民事證據(jù)法研究的實踐轉向及其對我國的啟示[J];法學家;2012年02期
6 龍云輝;段文波;;略論證明責任與主張責任的相互關系[J];法學評論;2008年03期
7 劉海東 ,徐偉群 ,尤海東;舉證責任和證明責任[J];法學;1993年03期
8 劉曉英;對我國民事訴訟舉證責任分擔原則的再思考[J];法學;1997年03期
9 夏良田;;證明責任分配的主要依據(jù)[J];西部法學評論;2008年04期
10 羅納德·J·艾倫;蔣雨佳;強卉;張姝麗;;證明責任[J];證據(jù)科學;2012年05期
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