民事证明责任二元论之检视

On Dualism of Civil Burden of Proof

两大法系证明责任理论通说均遵循二元结构的法庭证明逻辑:获取客观证据与分配真伪不明风险,是法庭证明的两个阶段。但迄今为止,区分设置两类证明责任仍缺乏坚实的理论基础,并且相关不同的解释造成了诸多混乱。二元结构证明责任理论存在两个基础问题需要明确:对"真伪不明"的界定和对判决悖论的解释。依照基于概率论的形式逻辑来界定"真伪不明",既缺乏实践意义,也存在逻辑瑕疵。如果两类证明责任彼此独立,那么对于同一案件,在各方均未提交任何证据或所提交证据均不满足证明标准的情形下,两类责任的不一致便将可能导致不同的判决结果,也将导致当事人行为激励的扭曲。证明责任二元论既缺乏合理的理论根据,也未被实践普遍、系统地接受,应当基于一元论的立场,将证明责任设定为针对每一要件事实的证据责任。

The general theory of burden of proof in the two legal systems follows the dual structure of court proof logic:obtaining objective evidence and allocating the risk of uncertainty are the two stages of court proof.However,until now,there is still a lack of solid theoretical basis for the establishment of two types of burden of proof,and there are many confusion caused by different explanations.There are two basic problems in the dualism of burden of proof:the definition of Uncertainty and the interpretation of the judgment paradox.According to the formal logic based on probability theory,there are not only practical significance but also logical defects in defining Uncertainty.If the two kinds of burden of proof are independent of each other,then in the same case,when no evidence has been submitted by either party or the evidence submitted does not meet the standard of proof,the inconsistency of the two kinds of burden of proof may lead to different judgment results and distortion of the party’s behavior incentive.The dualism of burden of proof is not only lack of reasonable theoretical basis,but also not accepted by practice generally and systematically.It should be based on the position of monism,and set the burden of proof as the burden of evidence for each important fact.