网络著作权侵权证据能力研究

Research on Tort Proof Ability of Copy Right of Net Work

伴随网络著作权侵权纠纷日益滋长之势,如何确立和适用证据来解决网络著作权纠纷,已成为法学理论界和实务界需要直面的难题。在网络著作权侵权证据方面,我国应该效仿其他大陆法系国家,在原有诉讼法体系中不断发展和完善我国现有的证据制度,从动态与静态两个方面对法官认定事实所依据的证据加以区分。同时,我们也应当在奉行"非歧视性"原则,在遵循现阶段"自由心证"主义、力求"客观事实"的基础上,适当地引用英美法系的证据可采性规则来限制法官"自由心证"的程度,为法官的具体裁判行为提供一种可"授权性"的法律依据,从而在遵循法定诉讼程序过程中,推断出符合法定证明标准的事实,作为法官裁判的基础事实。

It is paradox to which theory and practice field of jurisprudence have to face that how to apply and establish proof to dispose the continued increase tort dispute of net work copy right. In this field, we should imitate other continental law system countries and continue to develop and perfect our current proof regime in intrinsic procedure law system, to distinguish from static and dynamic state those proofs which the judge will depend on when affirming facts. At the same time, we should also stick to non-discriminatory principle and submit to current discretional evidence, pursue to substantial fact as well, and under this foundation, properly introduce consummate rule of admissibility from system of Anglo-American law which aim to limit the extent of discretional evidence, so that it can provide with the judger a kind of authorization legal basis, with this, during the process of submitting to legal litigation procedure, infer that facts which accord with legal standard of proof,it is also the judgment foundation sued by the judge.