论证明标准

On Standard of Proof

证明标准是证据制度的核心和灵魂。证明标准不能构筑在盖然性的基础之上,西方国家的盖然性优势标准和排除一切合理怀疑的标准(也称高度盖然率标准)均不能成立。证明标准是真实的样板。然而,历代证据制度下树立的真实样板,包括神示真实、法律真实、心证真实,均不能构成证明标准。学者们推崇的客观真实,也不能构成证明标准。司法证明的高标准是实质真实,低标准是形式真实。推定是司法证明的一种补救方法,它本身不是证明标准。

Standard of proof is the core and soul of the evidence system. Studying standard of proof and solving its problems are the key to improve and perfect the evidence system. Western countries have established two criteria, i. e. , ＂preponderance of the evidence＂ and ＂beyond rea- sonable doubt＂, both of which are built on the basis of probability. However, probability can not constitute the standard of proof, as probability is merely a kind of possibility, and the case cannot be solved solely on possibility. Therefore, these two criteria are not tenable. Standard of proof is the template of truth. History witnessed different templates of truth, in- cluding the truth revealed by deity, the truth ascertained within law and the truth found by free e- valuation. All of those are not what they mean to be. Truth revealed by deity is somewhat a su- perstition, which tells no difference between truth and falsity. Truth ascertained within law is kind of mechanical truth. This mechanical nature always covers up the real truth or takes falsity as true. Truth found by free evaluation is essentially the subjective truth. Subjective truth is valu- able, but it is just the faith in judge^s mind with no external sign and cannot be examined, tested and supervised. Its lethal weakness determines that it is unfit for the standard of proof. Besides the above three, scholars also advocate the objective truth. Objective truth is indeed the utmost of the truth, and is very hard to achieve fully in the judicial practice. Thus again, it can not consti- tute the standard of proof. Truth itself has two levels, that is, the existence level and reflection level. On the level of existence are two kinds of truth, i. e. , objective truth and substantial truth. Only substantial truth can constitute the standard of proof and it is the higher standard of judicial proof. On the level of reflection are subjective truth and formal truth. Only formal truth can constitute the standard of proof and it is the lower standard of judicial proof. Substantial truth refers to the na- ture truth of the fact as well as the truth sought through it. Formal truth refers to the truth pure- ly reflecting formality as well as the truth sought through it. Besides them, judicial proof includes one remedy method, i. e. , presumption. Presumption is not a standard of proof. Thus there are only two aforementioned criteria of judicial proof.