论证据学中“推定”的分类——基于推定基础的类型化界定

囿于传统的分类方法,以及时推定基础的单一化解释,我国学术界对于推定的研究尚处于比较浅的层次,司法实践中推定的适用也处于比较混乱的状态.推定的基础应为政策考量与价值权衡而不仅仅是盖然性.从多元的推定基础出发,可以将推定分为政策保护型推定、政策负担型推定、规则预设型推定以及纯粹盖然性推定.

Research on Classification of Presumption and Its Evidentiary Rules

Confined to the traditional classification and the simplified explanation for the basis of presumption,the academic research on presumption is still superficial.The application of the presumption in judicial practice is also in a chaotic state.The value of the presumption is based on policy considerations and value measurement rather than probability.Based on its multiple basis,presumption can be divided into the policy-based protective presumption,the policy-based obligatory presumption,the rules-preseted presumption,and presumption of pure probability.Because of their different basis and various relationships with free evaluation of evidence through inner conviction,different types of the presumption have different effect in the law of evidence and requires different rules of disproval.For the difference of civil law and criminal law,even the same type of presumption should have different rules of disproval in the two fields of law.