摘要
在诉讼活动中,事实认定是一个经验推论过程,证明是事实认定的基本方式,推定只是证明的一种辅助方法。作为证据法范畴,推定不是建立在相关性基础上的逻辑联系,其本质特征是在基础事实与假定事实之间创设某种法律关系。因此,运用推定认定事实时,必然造成证明过程的中断,这决定了其主要适用于民事诉讼领域,在一定程度上影响民事举证责任和说服责任。推定对准确价值的忽视和对效率等价值的追求,使其难以承载刑事证明的重任,不能替代对犯罪要件事实的证明,更不能成为确信无疑证明标准的例外,推定的滥用会危害刑事司法的公正性。
Presumption belongs to the category of evidence law, which indicates the legal relation- ships between basic facts and presumed facts. Presumption includes two forms, that is, the irre- buttable and rebuttable presumptions. In litigation, fact--finding includes three stages, adducing, examination and ratification of evidence, and the former two stages constitute the process of proof. Presumption is an intellectual activity between proof and inference. Permissive or ＂weak＂ presumption has some characteristics of inference, while the irrebuttable presumption and the rebuttable presumption of burden of proof and persuasion are not proof, but the interruption in the process of proof. Proof is a process of logical argument on facts. It is an establishment or assertion of the relevancy between evidential facts and constitutive facts and its conclusion must have a certain necessity. Presumption is an intuitive activity in which presumptive conclusion can be drawn from experiential commonsense directly. Presumption does not need to be proved by evidence and there are no chains of proof. Thus presumption is a temporal assumption and a type of legal relationship established on certain social policies. It is an interruption in the process of logical proof. It is no doubt that presumption simplifies the process of proof, raises efficiency of litigation and maintains the harmonious value. However, as an amendment or adjustment method of the burden of proof, presumption is mainly applied in civil cases and can generally not to be used in criminal cases, because presumption can ＂interrupt＂ the process of proof and shake the accuracy and justice of criminal proof. Of course, presumption is not absolutely prohibited in criminal cases, but the domains and conditions for its application should be limited strictly. Firstly, the principle of Presumption of Innocence should not be violated and the proof of constitutive facts should not be displaced by presumption. Secondly, the criminal standards of proof should not be degraded. To enhancing the accuracy and justice in fact--finding, the standard of beyond reasonable doubt is the bottom--line which no presumption can overstep.
出处
《法学研究》
CSSCI
北大核心
2009年第5期175-194,共20页
Chinese Journal of Law
基金
张保生承担的司法部法治建设与法学理论研究部级科研重点项目<证据法比较研究>(合同编号:03FB1014)的阶段性研究成果
关键词
推定
证明
政策性
相关性
presumption, proof, policy, relevancy
