论推定的逻辑学基础——兼论推定与拟制的关系

On Logic Foundation of Presumption ——And on the Relationship between Presumption and Fiction

尽管推定是法律中的一个重要制度 ,但学界对它的理解却是分歧严重。推定是以概率为基础 ,当两个事物或两组事物之间的联系存在一般与个别、常规与例外两种情形时 ,根据择优原则 ,将其中的一般联系、常规联系确定为他们之间的充分条件逻辑关系的一种行为或结果。推定与拟制的本质区别在于是否以概率作为建立两事物之间关系的基础。

Although presumption is an important institution of law, the academic field has serious divarication in understanding it. Presumption is based on probability. Where there are two situations such as general and individual, or normal and exception in the relationship of two matters or two groups of matters, the principle of picking out the best would be adopted to make the general or normal relation as a kind of act or result of their relationship with sufficient condition logic. The substantial difference between presumption and fiction is whether probability is the basis for setting up the relationship of the two matters.