民事证明责任基础理论探新
发布时间：2018-08-22 14:24
【摘要】：民事证明责任问题是民事法律及民事诉讼活动中的核心问题,它被学术界和实务界公认为民事诉讼活动的脊梁。百年以来,英美法系与大陆法系国家的诸多学者对证明责任问题进行了深入的研究,关于证明责任性质、结构、分配三个方面的研究成果尤为丰富。证明责任分层理论的提出,是证明责任理论研究领域的一次重大突破：证明责任分层理论将证明责任划分为主观证明责任和客观证明责任两层,这一理论使得学界对证明责任的认识进一步深化,并在一定程度上化解了学界对证明责任性质的争议。证明责任分层理论仅仅是对证明责任进行了理论上的划分,未能充分考虑到证明责任制度的运行是一个动态的过程。同时,证明责任分层理论的提出,使得证明责任的原有术语也不再能适应新兴理论的要求。证明责任的分配是证明责任制度的关键,“法律要件分类说”及其修正学说则是解决这一关键问题的有力武器。然而中国关于证明责任分配的立法与司法均存在着较多的不足,证明责任分配立法对相关理论成果的体现较少,且未能明确区分主客观证明责任的区别。立法上的不足、法官理论水平与业务能力的参差不齐,共同导致了司法活动中证明责任制度适用不规范的现状。 虽然近代以来对证明责任的理论研究发生了较大的发展与进步,但不得不承认的是,证明责任基础理论仍然存在着诸多不尽人意之处。其中证明责任术语的运用、证明责任制度的动态性、证明责任时间要素的重要性、证明责任分配的理论与实践等方面均需完善： 1.现有的证明责任术语不再能满足现代证明责任理论的要求。证明责任术语具有高度的学术性和抽象性,但在现代证明责任理论下无法涵盖证明责任的全部含义,既不符合立法中法律语言严谨、简明的要求,也不易被法官、社会公众所认知和运用,在理论研究领域中更起着误导性作用并阻碍着证明责任理论的发展。在理论研究领域,应当采用创造或引进新术语、形成新的术语使用习惯、重新定义现有术语等手段加以弥补；在法律运行当中则不宜采用抽象性、学术性强并具有误导性的术语,在恰当的术语被广泛接受前,可使用更直白而简明的方式,在法律中对证明责任制度加以规定。 2.证明责任是一个动态的过程,而不是静态的理论。证明责任分层理论是关于证明责任结构问题的理论学说,而忽视了证明责任的运行实际上是一个动态的过程。从动态的视角来看,证明责任分层理论的两个层次在逻辑上并不能严密对接,因而有必要增加一个“进行证明”的新层次方显完善。证明责任制度的运行是动态的,而时间因素则规制着其运行过程,并对证明责任制度的运行发挥着不可小觑的作用,因而必须给予足够的重视。证明责任制度运行中的不同阶段对应着司法活动中的不同时间,这些时间规制着证明责任的存续,规定着证明责任的发生、变更和终止,规制着证据的效力,影响着证明责任的最终确定。所有的规制着证明责任制度运行的时间因素,被统称为证明责任的时间要素。 3.证明责任分配的理论及其运用仍有待深入探讨。现代证明责任理论中,法律要件分类说及其修正学说占据着通说地位,同时还存在着危险领域说、盖然性说、损害归属说等基于对规范说的反驳而提出的颇具影响力的学说。在证明责任分配原则之外,还存在着证明责任倒置、免除、证据契约等例外情况。然而证明责任分配理论的体系性仍然很弱,应当以修正规范说作为基本原则,特定情况下以反规范说补救规范说的缺陷,确立证明责任分配的例外情况,以加强证明责任分配理论的体系性。中国证明责任分配立法缺少原则性规定,对不同层面意义上的证明责任规定不明确。因而应当在立法中选用合理的、体系化的证明责任分配理论,并明确实体法与程序法、制订法与司法解释的分工,进而形成体系严密、结构完整的证明责任分配立法体系。证明责任分配在司法活动中才具有直接而现实的意义,证明责任的动态性和立法上的不足,对法官的业务能力提出了严峻的考验。因而应当在充分认识到司法活动中证明责任分配的动态性、完善证明责任分配立法的同时,提高法官的理论知识和审判技能,才能更好地完成证明责任的分配。
[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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D915.2
本文编号：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D915.2
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