间接反证适用范围探析

A Study on the Application Range of Indirect Disproof

二元制事实认定结构为间接反证的适用提供了契机。在二元制事实认定结构中,证明与前提事实两立之事实以阻断认定结论性事实的过程,是适用间接反证的典型情况,而直接证明前提事实不成立的防御方法应属于直接反证。具备二元制事实认定结构的事实推定,因其经验法则的盖然性和推定结构并非全部都可以适用间接反证;间接反证同样可以应用于法官对高度盖然性经验法则进行司法认知的表见证明中。而在因果关系和过失的表见证明中,对经验法则的攻击同时也构成了对主要事实的抗辩,所以应区辨间接反证在此情况下之适用效果。

The dual system of fact-finding structure provides a great chance to apply indirect disproof theory. In the dual system of fact-finding structure, one typical application of indirect disproof is to prove the ex- istence of a fact that co-exists with the prerequisite fact to intervene the process of the confirmation of a conclu- sive fact. Yet the defense methods of directly proving the prerequisite fact inadmissibility should belong to the cat- egory of direct disproof. But the fact presumption with the dual system of fact-finding structure cannot be ap- plied universally with the indirect disproof theory due to the probability of the rule of thumb theory as well as the presumption system. Consequently, the indirect disproof theory can also be applied in the Prima facie Beweis sys- tem when judges take judicial notice of the rule of thumb theory with a high probability. The effects of the indi- rect disproof theory should be made distinction under the situation in which the plea on primary facts also consists of the attack on the rule of thumb in the Prima Facie Bewies of causality and negligence.