证明责任分配与要件事实理论——兼议我国传统民法规范的转换

On Distribution of Burden of Proof and Theory of Facts of Essentials——Review on transition of traditional civil law norm in China

要件事实理论为民事实体法与民事程序法搭建了一条沟通的桥,从证明责任分配的立场来解读传统民法制定规范的局限性,重新反省实体法与程序法之间的相互关系,以要件事实理论为基点,用条文的载体形式将作为行为规范的民法转换为真正的裁判规范的民法。在当前我国民事司法改革的背景下,试图为民法典的订立提供有所助益的规范转换径路。

The theory of facts of essentials builds up a bridge between the civil substantial law and procedural law. This paper explores the limitations of traditional civil law norm from a standpoint on distribution of burden of proof, and reexamines the mutuality between the substantial and procedural law. Additionally, relying on the theory of facts of essentials, civil law is transformed from norm of conduct to that of adjudication by means of clause carriers. Furthermore, under the background of our civil judicial reforms, this paper is intended to contribute an effective way of transition of norm for the enactment of civil code.