在证据与事实之间:一种证据博弈观

Between Evidence and Facts: A Perspective of Game-based Evidence

本文提出了一种新的证据观,即证据博弈观。在诉讼中,证据与事实之间有两种基本思维活动:一是证据推理;二是事实论证。二者关注的是诉讼同一环节的两个不同面向。证据推理是从法律证据推导出可能案件事实的思维过程,而事实论证则是为事实主张寻找法律证据支撑的思维过程。从思维进程上讲,前者关注的是"从前提到结论"的事实推导,后者关注的是"从结论到前提,再回到结论"的证据挖掘。证据博弈说认为,证据的选择和呈现序次的不同均会导向案件事实和裁判结果的差异,而起、应、审三方则可以各自进行策略操控,以实现其最终目的。

In this paper we put forward a new view of evidence, i.e., the view of game-based evidence game. In litigation, there are two basic thinking activities-evidential reasoning and factual argument between evidence and facts. Both of them focus on two different aspects of the same link of litigation. Evidential reasoning is the process of thinking to follow possible facts of a case from legal evidence, while a factual argument is the process of thinking to discovery legal evidence to support the factual claim. From the perspective of thinking process, the former focuses on a derivation from premise to conclusion as fact, while the latter focuses on the evidence mining from conclusion to premise and then back to conclusion. According to the game-based evidence theory, the different choice of evidence and its different order in presentation in court will lead to the difference in case facts and judgments, while the suitor, the respondent and the trier can strategically maneuver their legal argumentation based on their respective final goals to achieve.