法律推定的可反驳性辨析

Analysis on Refutability of Legal Presumption

推定是从基础事实中推断出推定事实的一种事实认定的方法。由于基础事实与推定事实之间并不存在必然的逻辑关系,以及常识与经验本身的不可靠性,依靠常识和经验确立的推定规范均具有可反驳性。通过推定获知的事实并不一定是真确的,而是可反驳、可证伪的。法律出于特殊政策的考量所设立的不容许反驳的推定,在事实上仍然是可以反驳的。在设立法律推定时,应当充分尊重所有的推定均具有可反驳性的本质属性,尽量避免设立不容许反驳的法律推定。

Presumption is a method of ascertaining facts by deducting them from the basic facts. Since there is no logical relationship between the basic facts and the presumptive facts,and the unreliability of common sense and experience,the presumptive norms established by common sense and experience are refutable. The facts obtained by presumption are not necessarily true,but they are refutable and falsifiable. The irrefutable presumption established by law on the basis of special policy considerations can still be refuted in fact. The presumption that the law does not allow refutation for the sake of special policy is still refutable in fact. In the establishment of legal presumption,we should recognize that all presumption has the nature of refutability,and try to avoid the establishment of legal presumption that does not allow for refutation.