劳动争议诉讼举证责任制度研究

发布时间：2019-04-28 19:09

【摘要】：民事举证责任制度是民事诉讼的脊梁,现行的民事举证责任制度继承了德国学者罗森贝克的"规范说"基本规则,劳动争议诉讼虽然具有特殊性,但是依照现行的法律法规规定,依然适用"规范说"主导下的民事举证责任分配规则。由于劳动者和用人单位的隶属性,在劳动争议中,往往会出现举证困难的情形,而这种举证困难的结果又不是劳动者自身原因造成的,法官依照现行的举证责任分配规则裁判这类案件往往会出现不公平的结果。劳动争议诉讼中,举证困难的原因一般有两种,一种是证据偏在,即证据在用人单位手里掌握,一种是证据未形成。第一种举证困难的情形运用现有的证据妨碍制度即能解决,第二种证据未形成导致的举证困难,现有的举证责任分配规则不能很好的解决该问题,因此应当寻找新的视角——举证责任减轻理论,举证责任减轻理论在该种情形下的运用主要是指证明标准降低,它一方面缓解了劳动者的举证困境,另一方面又没有完全卸除劳动者的举证责任,可以防止劳动者滥诉,损害用人单位的合法权益。因此,劳动争议诉讼举证责任制度应当以民事诉讼举证责任分配规则为核心,同时在举证困难的特殊情况下可以适用举证责任减轻理论来作为调和。该篇论文主要分为四个部分:第一部分,通过典型案例入手,发现司法实践中的问题是证据未形成导致劳动者在诉讼中举证困难;第二部分,分析现具体的劳动争议诉讼举证责任分配规则,发现现行的举证责任分配规则还是沿袭传统的民事举证责任分配规则,符合"规范说";第三部分,分析劳动争议诉讼举证责任分配规则的缺陷,首先是理论缺陷,"规范说"适用的前提是平等主体,而劳动争议诉讼中双方主体地位不平等,对证据的掌握能力不同,"规范说"理论在构建之初就没有考虑举证能力差异的问题,其次是实践缺陷,证据未形成会导致劳动者举证困难,这该种情况司法实践有不能很好地解决;第四部分,引入举证责任减轻理论,该理论可以很好的解决司法实践中出现的劳动者举证困难的情况。
[Abstract]:Civil burden of proof system is the backbone of civil litigation, the current civil burden of proof system inherited the German scholar Rosenbeck's "normative theory" basic rules, although labor dispute litigation has particularity, However, according to the current laws and regulations, the distribution rules of civil burden of proof under the guidance of normative theory are still applied. As a result of the membership of labourers and employers, in labor disputes, there is often a difficult situation of proof, and the result of this difficulty of proof is not caused by the laborer's own reasons. Judges judge such cases according to the current burden of proof distribution rules, which often result in unfair results. In labor dispute litigation, there are generally two reasons for the difficulty of proof, one is that the evidence is in the hands of the employer, the other is that the evidence has not been formed. In the first case, the difficulty of proof can be solved by using the existing evidence obstruction system, and the difficulty of proof resulting from the non-formation of the second kind of evidence can be solved, and the existing rules for the allocation of burden of proof cannot solve the problem very well. Therefore, we should look for a new perspective-the theory of lightening the burden of proof. The use of the theory of lightening the burden of proof in this case mainly refers to the reduction of the standard of proof, which on the one hand alleviates the plight of the labourers in proving evidence. On the other hand, the burden of proof has not been completely removed from labourers, which can prevent labourers from suing and harming the legitimate rights and interests of employing units. Therefore, the system of burden of proof in labor dispute litigation should take the distribution rule of burden of proof in civil litigation as the core, at the same time, it can be reconciled with the theory of lightening the burden of proof under the special circumstances of difficulty of proof. This paper is divided into four parts: the first part, starting with typical cases, it is found that the problem in judicial practice is that the lack of evidence causes labourers to prove difficult in litigation; In the second part, the author analyzes the distribution rules of burden of proof in labor dispute litigation, and finds that the current distribution rule of burden of proof is still in accordance with the traditional rules of distribution of burden of proof in civil cases, which is in line with the "norm theory". The third part analyzes the defects of the distribution rules of the burden of proof in labor dispute litigation, first of all, the theoretical defect, the premise of the application of "norm theory" is equal subject, and the main body status of both sides in labor dispute litigation is not equal. The theory of "normative theory" has not considered the problem of the difference of proof ability at the beginning of its construction, and the second is the practice defect, and the lack of evidence will lead to the difficulty of proving evidence by labourers. The judicial practice of this kind of situation can not be solved very well; In the fourth part, we introduce the theory of lightening the burden of proof, which can solve the problem of laborer's burden of proof in judicial practice.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D925.1

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