“民事证据裁判原则”辨识

证据裁判原则是刑事诉讼法中的一项原则。受刑事诉讼法理论的影响,证据裁判原则也在民事诉讼中被人们所提及。但基于民事诉讼的特定语境——民事纠纷性质、实体法属性、纠纷当事人关系、民事诉讼规范体系的特定性,证据裁判规范的要求就具有了与刑事诉讼法不同的意义和价值。其例外情形、原因及发生机理也有所不同。基于民事案件事实揭示的机理和民事诉讼法强调"谁主张谁举证"的举证要求,在民事诉讼中,证据裁判作为原则的意义和地位远不如刑事诉讼。对于如何认识证据裁判的规范地位和意义,无论是民事证据规范文本的规定,还是人们对例外情形的认识,都存在着一些误识。误识的主要原因是脱离了民事纠纷的特性,按照公法思维而非私法思维去认识证据裁判的意义。文章就此进行了澄清和辨析。在民事诉讼中,对于事实认定而言,更重要的是自由心证原则。

Understanding "the Principle of Civil Evidence-Based Adjudication"

Evidentiary adjudication, originally a principle in criminal litigation, has been referred to in civil litigation under the theoretic influence of the criminal procedure law. However, such a principle has acquired a different import and value under the specific context of civil litigation, which is different from criminal litigation in its nature, in the attributes in the respects of the substantive law, in the relationship between the parties, and in the system of procedural rules. In its application in civil litigation, the exceptions, the reasons behind, and the working mechanisms are also different from those in the criminal litigation. In fact, it is of a lesser significance and status in the civil procedure law, considering the mechanism of fact disclosure and the requirement of proof in civil litigation——"who claims who bear the burden of proof." However, in the regulation of evidence in civil litigation and the rule of exception in the application of evidentiary adjudication, exist some misunderstandings, the reason for which lies in that the value of evidentiary adjudication is understood from the perspective of public law away from the nature of civil disputes, rather than from the perspective of private law. After the clarification and analysis of such misunderstanding, this paper holds that in civil litigation, the discretional evaluation of evidence in fact finding is still more important.