论证明责任作为民事裁判的基本方法——兼就“人狗猫大战”案裁判与杨立新教授商榷

On the Burden of Proof as the Basic Method of Civil Referee——A Discussion with Professor Yang Lixin on the Referee of an Animal Infringement Case

证明责任之所以成为"民事诉讼的脊梁",在于其作为民事案件基本裁判方法的功能。在传统司法三段论之外,现代证明责任上升为民事案件基本裁判方法是因"规范说"而兴起,并由"修正规范说"加以完成的。我国司法实践中长期忽视证明责任的裁判方法论功能。仅在审判最后阶段案件事实落入真伪不明情形时利用证明责任分配来决定败诉结果的承担,实际上使证明责任沦为民事诉讼的"尾骨",是对其功能与意义的严重贬损。基于案件事实的二重性,事实问题的判断理论上存在"二阶结构"。证明责任是法律适用理论的一部分,而法律适用的核心是对案件事实作必要的判断,证明责任实质上是裁判规范的援引问题,即实体法问题。

The reason why the burden of proof has become the ＂backbone of civil litigation＂ lies in its function as basic referee method of civil cases. In addition to the traditional judicial syllogism, the modem burden of proof has risen into the basic referee method of civil cases, which is caused by ＂Norm Theory＂ and is completed by ＂Modified Norm Theory＂. This function has long been neglected in chinese judicial practice. Only in the final stage of the trial, when the facts of the case fall into ＂Non Liquet＂ , the use of the burden of proof to determine the outcome of the failure to bear, which in fact makes the burden of proof into ＂coccyx＂ of civil action, This is a serious derogatory to its function and meaning. Based on the duality of the facts of the case, theoretically there is a ＂second order structure＂ in judging the factual problems. The burden of proof is part of the theory of legal application, and the core of legal applicationis to make the necessary judgment on the facts of the case. The burden of proof is essentially the question of the referee norm.