论民事法律推定的逻辑重构与体系臻备

On logical reconstruction and systematization of civil legal presumption

民事法律推定的理论研究和实践发展应秉持程序法意义上事实认定的基本立场。法律推定的类型化可以从几个方面考量:第一,以是否存在证明妨碍的可能,以及是否存在超越事实的政策要素细化民事法律推定的立法理由,在此基础上区辨不同类型推定的反证标准以替代传统的可反驳、不可反驳分类方式;第二,以存在必要性前提事实为准,识别真正推定规范使其独立于证明责任倒置规范;第三,区分实体法律推定与程序法律推定。法律推定的一阶效力为证明责任减轻而非证明责任倒置,二阶效力为反面证明标准以反驳为原则、推翻为例外。应完善民事法律推定总则性条款,于实体法推定下应当区分推定规范与实体法律关系规范分层判断要件事实,并且应当区分事实推定与权利推定,使民事法律推定体系趋于臻备。

The theoretical research and practical development of civil legal presumption should adhere to the basic position of fact-finding in the sense of procedural law. The classification of legal presumption can be considered from the following several aspects. First, refine the legislative reasons for civil legal presumption based on whether there is the possibility of obstruction of evidence and whether there are policy elements that go beyond the facts. On this basis, the counter evidence standards of different types of presumptions are distinguished to replace the traditional refutable and irrefutable classification. Second, based on the existence of the necessary premise facts, identify the true presumption norms, making it independent of the inversion of the burden of proof norms. Third, distinguish between substantive legal presumption and procedural legal presumption. The first-order effect of legal presumption is the reduction of burden of proof rather than the inversion of burden of proof, and the second-order effect is the negative proof standard, with rebuttal as the principle and overthrow as the exception. The general provisions of civil legal presumption should be improved. Under the presumption of substantive law, it is necessary to hierarchically distinguish between presumption norms and substantive legal relationship norms to judge essential facts, and between presumption of facts and presumption of rights, so that the system of civil legal presumption could tend to be completed.