证明责任与不适用规范说——罗森贝克的学说及其意义

本文着重探讨了民事诉讼中当事人负担客观证明责任的缘由。文章认为,与"拟制说"相比,罗森贝克的"不适用规范说"对缘由的解释简明扼要,通俗易懂。另一方面,实体法作为裁判规范,其适用是与要件事实的可证明性相关联的,要件事实真伪不明时,未必一定需要拟制这一中间环节。因此,"不适用规范说"不失为一种有力的学说,对我国民诉理论与审判实务具有借鉴意义。

The Burden of Proof and the Theory of Non-applicability of Legal Regulations--Rosinbeck's Theory and Its Significance

The thesis focuses itself on the essential cause of burden of proof by the party concerned in civil proceedings. The article argues that comparing with the theory of "proposed regulation" Rosinbeck's theory of "non-applicability of legal regulations" gives a succinct and popular interpretation. In addition, the applicability of the substantive law as a norm to decide a case is closely related with testifiablility of possible facts, where possible facts are ambiguous, it seems unnecessary to propose an intermediate means "the theory of non-applicability" therefore may be a proof-sustaining theory and be a significant theory to be learned from in theory of civil proceeding and practical judgment of legal cases in China today.