论买卖合同诉讼中证明责任的类型化分配——兼议我国《民事诉讼法》之修改

Study on Burden Distribution of Proof in Sales Contract Dispute for Different Types——Also on the amendment of civil procedure law in China

罗森贝克的规范说证明责任分配理论具有较好的客观性和普适性,对大陆法系国家影响深远,最高人民法院《关于民事诉讼证据的若干规定》也有所借鉴。以买卖合同纠纷中的证明责任分配为例,《关于民事诉讼证据的若干规定》对消极违约之诉以及变更、撤销之诉的处理容易引发歧义,并难以像规范说一样为积极违约之诉提供确切的证明责任分配意见。证明责任分配规范是民事程序法不可或缺的组成部分,我国应当构建以规范说为主体兼顾公平的抽象证明责任分配原则。

Rosenberg's theory of regulation is objective and universally applicable. It has a profound influence on civil law countries and has been taken as a reference for Regulations of the Evidence of Civil Action(RECA). By analyzing the allocation in sales contract disputes, the result of applying RECA is ambiguous in negative default contract disputes, as well as the situation relating to the modification or cancellation of sales contracts. Neither could RECA provide an exact legal basis for the distribution of proof responsibility in positive default litigation just like the theory of regulation. The rule of the burden of proof is indispensable for civil procedure law. It's accessible in China to set the theory of regulation as the mainframe of this abstract rule while taking fairness into account.