论德国民事诉讼中的证明妨碍制度——以德国联邦法院的判例为考察对象

On the system of spoliation of evidence in civil litigation of germany: based on cases by federal courts in germany

在德国的民事诉讼中,证明妨碍虽作为一项重要的证据制度为其立法所明确规定,但丰富并完善证明妨碍的乃联邦法院长期以来积累形成的判例。在德国,证明妨碍既可以是作为,也可以是不作为。构成证明妨碍须以不负证明责任的当事人违反了相应的义务为前提。证明妨碍造成了举证人证明不能或证明困难。对证明妨碍的规制一般采取证明责任减轻直至证明责任转换。

As a signifi cant evidence rule, spoliation of evidence in civil litigations in Germany is clearly defi ned in the law of this country and its connotation has been mainly extended and improved with cases that are dealt and collected by federal courts for a long time. In Germany, spoliation of evidence can be act or omission, and it only exists when the opponent of the prover breaches some corresponding obligations. Spoliation of evidence, which makes the proof too diffi cult or impossible, is usually penalized with the methods from ＂facilitated standard of proof＂ to ＂reversed burden of proof＂.