论证明力与诚实信用原则的关系

On the Relationship between the Probative Force and the Principle of Good Faith

传统的证明力理论是个不完善的理论。原因在于:传统中的德治理念不自觉地改造了自由、公平和正义的观念,证明力理论因此失去了它的生命力,也蒙蔽了它与诚实信用原则之间的因果性联系。在面对现代性法律的诉求时,证明力理论已无力应对。对其改造的基础就是恢复其与诚实信用原则之间的因果性联系。论证它们之间的逻辑关系可采用日常语言分析、比较等实证性方法。

Facts have proved that the traditional theory of probative force is full of flaws. The reason for this lies in that the traditional virtue concept unconsciously transformed concepts of freedom, fairness and justice. As a result, the traditional theory of probative force loses its vitality and further deceived the causal linkage between probative force theory and the principle of good faith. Thus, when facing the appeal of modem law, the traditional theory of probative force has been proved unable to cope with the reality and demands transformation. The basis of the this transformation is to regain the causal linkage between between proba- tive force theory and the principle of good faith. When proving the logical relationship between them, the author adopts the empiri- cal method of ordinary language analysis and comparison.