从逻辑到法律:推定改变了什么

From Logic to Legal Rule:What Is Changed by Presumption

推定是根据法律规定,在基础事实被确定为真(或不需要基础事实)的条件下,确定推定事实为真的法律规则。推定基于经验法则或社会政策对证明强度作了人工强化。区分推理、推论和推定有重要意义,推理只关注形式的有效性,推论同时关注内容真实性和形式有效性,所谓事实推定本质上属于推论。推定对裁判者的自由心证构成了局部侵蚀,同时推定具有转移或倒置证明责任的重要功能。推定的强度可以从其相反推论所需强度来解释。在关注推定的积极功能时还应关注推定的消极功能,在推定设定和适用中实现权利(权力)、价值的综合平衡。

A presumption is a legal rule which requires court and judge to draw a particular inference from(or without)particular basic fact.Based on the law of general experience and social policy,the weight of evidence gets stronger due to the artificial presumption rule.It is very important to distinguish reasoning from inference and presumption.Reasoning focuses on the validity of logic form while an inference pays attention to both truth of materials and the validity of logic form.Actually the so - called fact presumptions are inferences.To some extent a presumption influences the free evaluation of evidence during decision-making process and it transfers the burden of proof from a party to the other one.The degree of a presumption relates to the degree of its opposite inference.Though we have paid enough attention to the presumption's positive value,we should pay more attention to its negative ones in order to make the basic balances between the national power and civilian liberties.