“认识—道德两分理论”下的举证妨碍制度程序建构——以知识产权侵权诉讼为视角

The construction procedural rules of the spoliation of evidence production under the epistemology-political morality dichotomy theory:from the perspective of intellectual property infringement litigation

举证妨碍制度兼有救济和制裁性质,有助于诉讼中公正价值的实质实现,但由于存在制度定位不清、程序性不强以及一般条款与特殊条款不协调等不足,举证妨碍制度在知识产权侵权诉讼的实践中一直处于低效运行的状态,并未起到应有的救济作用。“认识—道德两分理论”厘清了在事实认定规范中认识论和道德判断的界限问题,可以为我国举证妨碍制度的程序构建提供指引。举证妨碍制度是一种证明责任规范,其顺利运行有赖于法律的明确规定。可以通过解释论的视角,以现有条文为依托,构建以诉讼上的协力义务为核心线索的举证妨碍制度运行程序,解决举证妨碍制度在知识产权侵权诉讼中适用率低下的问题。

The system against spoliation of evidence production,featured with the function of providing remedy and sanction,is conducive to the realization of fairness value in litigation in essence.However,due to the unclear positioning of the system,the lack of procedural regulations and poor coordination between general and special provisions,the system against spoliation of evidence production has been operating inefficiently in the practice of intellectual property infringement litigation.The system has not played a proper role in relief.The“epistemology-political morality dichotomy theory”clarifies the boundary between epistemology and moral judgment in the rules governing fact finding.This theory can provide guidance for the construction of the procedural rules in the system against spoliation of evidence production in China.The system against spoliation of evidence production is made of rules of proof burden.The smooth operation of such system depends on the clarity of legal provisions.From the perspective of interpretation theory,and based on the existing provisions,we can rely on the duty of cooperation in litigation as the core clue to construct the procedural rules of the system against spoliation of evidence production,in order to solve the problem of low application of the system against spoliation of evidence production in intellectual property infringement litigation.