劳动争议证明责任倒置说之批判

Criticism of the Theory of the Inversion of the Burden of Proof in Labor Disputes

传统观念认为,我国劳动争议领域的证明责任分配实行的是证明责任倒置。这种倒置说在司法实务界具有广泛影响,而且在法律规范和法律理论层面似乎也不缺乏支持。但这种学说其实建立在一个错误的前提"谁主张谁举证"原则之上,而且笼统地要求用人单位原则上承担证明责任也无法在个案中进行恰当分配。更为致命的是,诸多相关法条并不能为倒置说提供坚实的规范基础,而且证据偏在也绝非是实行倒置的充分理由。但如果抛弃倒置说而采用规范说,又可能在某些案件中无法恰当分配证明责任。更为合适的选择是采用修正规范说,并结合对实体法规范的解释,完全可以为劳动争议领域的证明责任问题提供恰当的解决方案。以上述分析为基础,也可以发现《劳动合同法》在立法技术上存在一定缺陷。对此应当修订相关法条,通过主文/但书的区分等方式恰当地表达证明责任分配。

According to the traditional view, China adopts the theory on inversion of the burden of proof in the field of labor disputes. This theory has a wide range of influence in le- gal practice, and does not seem to lack support at the normative and theoretical levels. But it is actually based on a wrong premise-namely the principle ＂who claims proves＂-and its general re- quirement that the employer should in principle bear the burden of proof cannot be allocate properly in concrete cases. Even more fatal is the fact that the numerous relevant legal provi- sions cannot provide a solid normative foundation for the theory, nor does the fact that evidence is closer to one party constitutes a sufficient reason for the implementation of the principle of in- version of the burden of proof. However, if we abandon this theory and adopt the Norm Theory, we might not allocate the burden of proof properly in some cases. The more appropriate choice is to adopt the modified Norm Theory, which, combined with the interpretation of substantive legal norms, can provide appropriate solution to any problem relating to the burden of proof in the field of labor disputes. The above analysis also reveals the defects in the legislative technique of the Chinese Labor Contract Law. China should revise the relevant legal provisions, so as to ex- press appropriately the burden of proof through such methods as distinguishing the main text from the proviso.