摘要
神示证据制度后,西方国家选择的基本证据制度就是法定证据制度。法定证据制度的本质就是法律制约证据,这就是历代立法中犯下的最大错误。这一错误颠倒了意识和存在的关系、践踏了证据的客观属性、把证据问题人为地变成了法律问题。证据学研究证据及其规律,而证据及其规律都是事实问题,不是法律问题;证据学研究证明及其规则,而证明及其规则都是认识问题,也不是法律问题。由此来看,证据学根本不是法学。证据学是着重从实质层面研究证明的学问。逻辑学是从形式层面研究证明的学问,被称为"形式逻辑"。证据学就应称为"实质逻辑"。"实质逻辑"就是证据学的学科定位。
After abandoning the system of divinity evidence, western countries have chosen the system of legal evidence as their basic evidence system. Taking the restriction of evidence by law as the essence of the system of legal evidence has been the biggest mistake made in legislation throughout the history. This understanding confuses the relationship between consciousness and existence, tramples upon the objective attribute of evidence, and artificially turns the issue of evidence into a legal issue. Evidence science studies evidence and its objective law, both of which are questions of fact, the rules on proof, both which are questions rather than questions of law. It studies proof and of cognition, rather than questions of law. Therefore evidence science is not law science at all. It is a science that studies proof at the substantive level whereas logics is a science that studies proof at the formal level and is call "formal logics". Evidence science should be called "substantive logics" and sub tantive logics shouldbe the disciplinary orientation of evidence science.
出处
《环球法律评论》
CSSCI
北大核心
2015年第1期5-19,共15页
Global Law Review