事实与法律:损害的二象性及其展开

Fact and Law: The Duality of Damage and Application

事实与法律在本体论和规范论上都不能实现泾渭分明。这决定了损害也有二象性,既可分为事实意义和法律意义等理想类型,又可依事实或法律属性建立众多现实序列。在实体法上,从法律效果的角度反观损害致其本质上无法纯化为事实。要件交错性从外部要求综合其他要件整体判定损害,损害的结构形态则在内部使损害明显包含了评价要素,两者均使损害负载了法律属性,并对规范设计产生了重要影响。程序法也须结合损害的二象性设立具体制度。真正的证明对象应限于损害的事实成分。证明标准须按照损害的具体类型予以调整。事实意义和法律意义的损害都存在推定问题,但适用范围存在差别。以"得利"替代"损害"和损害法定是损害证明的重要替代机制。

The fact and law can not be separated clearly either on ontology or on norms. Damage has duality that means it has factual meaning and legal meaning in ideal types, and can be lined in real world by fact or law factor. In substantial law, damage can not be purified into fact in nature because of our definition from the viewpoint of legal effect. From the external perspective, it requires to adjudge damage together with others because of the mixture of normative elements, and from the internal perspective, the structural form of damage makes it obviously contain evaluative factors, and both of them make the damage load the nature of law, and have great impact on legislation. The procedure law should set up specific rules according to the duality of damage. The object of proof indeed is the factual factor of damage. The standard of proof should be adjusted on the different type of damage. There is the problem on presumption both in factual meaning and legal meaning damage, but the field or way is different. The important substitution to proof the damage is to replace damage of enrichment and to determine damage by law or judges.