举证责任转移的内在机理及其程序化

The Internal Mechanism and Procedural Design of the Transfer of Burden of Proof

举证责任转移必须从作为诉讼目标的原告的初次主张开始,其基本条件是主张有力并得到有效证明。转移的实质是征询对方的对立的并可成立的主张。转移的关键是主张方已经作出了有足够说服力的证明。举证责任转移程序之理论模式是,按照时间顺序将主张的不断推进流程化,而且以诉讼主张为单位构成一个个严密的环节。每一环节诉讼主张的确立应设置"程序空间",法官中立是举证责任转移合理运作的关键。刑事举证责任转移来源于无合理怀疑证明标准的特殊性表现是,公诉人初次主张的有效性要求较高,被告方反驳主张的有效性要求较低。

The transfer of burden of proof must begin with the initial claim of the plaintiff which is the objective of the lawsuit, and its basic requirements are the claim being powerful and proved valid. The essence is to inquire the claim of the other party which is contrary but tenable. And the key point is the party who puts forward the claim has proved it and made it persuasive enough. The theoretical mode of the procedure is to propel the process of claim in the order of time, and to constitute a series of compact links, in which a claim is regarded as a unit. The confirmation of the claim in each link should set up a ＂program space＂. It is crucial that the judges are neutral so that the transfer of the burden of proof can be operated reasonably. And the particularity originated from the beyond reasonable doubt probative standard of the transfer of burden of proof in the criminal lawsuits is the higher requirement of the validity of the public prosecutor＇s initial claim, but lower of the dependant＇s refutatory claim.