摘要
我国民事诉讼朝向当事人主义的改革中,大力强调当事人的举证责任,一定程度上导致法院对争议案件,偏好通过证明责任进行法律推理来作出判决。但是,法律推理以及作为推理之特殊大前提的证明责任,是承载人们解决法律争议的经验和技术的思维形式,证明责任仅在法院解决纠纷不得已时才适用。证明责任并不必然由持有证明手段的当事人来承担,在事实真伪不明场合,法院借助证明责任作出判决则有可能与事实真相不符,产生不符合具体正义的情形。鉴此,文章结合国内外理论和司法实践,有针对地就避免通过证明责任作出判决之法律技术上的对策,进行讨论,并提出观点。
During the reform of China＇s civil procedure toward the Party Doctrine, emphasizing the burden of proof of the involved party will, to some extent, lead to an inappropriate adjudication because the Courts prefer to adjudicate the disputed issues by legal reasoning through the burden of proof. From the author＇s point of view, however, legal reasoning and the burden of proof which serves as the big prerequisite of the syllogisms of the reasoning are people＇s ways of thinking reflecting their experience and judgment in settling legal issues. The burden of proof only applies when the Courts finds it hard to settle an issue. The burden of proof is not necessarily undertaken by the party who holds the evidence. In a situation of non liqllet, the judgment made by the Courts may be inconsistent with the fact, thus may not refleet the specific justice. Therefore, this article, based on the domestic and international theories and judicial practices, tries to probe into the effective legal strategies to deal with the issue of avoiding adjudications made through the burden of proof.
出处
《法学家》
CSSCI
北大核心
2005年第5期72-80,共9页
The Jurist
