再论民事诉讼证明责任的转移

古罗马法以来,证明责任被称为民事诉讼理论的脊梁。客观证明责任强调案件真伪不明时的败诉风险,在审理过程中始终固定于一方当事人。负担客观证明责任的当事人由此需率先举证,从而为主观证明责任的转移确立了逻辑起点。此后,当事人各方的证据数量交替上升、证明力此消彼长,法官心证亦随之在＂为真＂、＂为假＂、＂真伪不明＂间波动,案件事实基于证明责任的反复转移得以逐步明晰,证明责任的转移机制得以完整。

Basic Research on the Transfer of Burden of Proof

The burden of proof is the backbone of the theory of civil procedural theory,the transfer of burden of proof is the core of the civil case processes.For one fact which is waiting to be proved,the objective burden of proof is allocated to one party permanently.The party is forced to provide evidence first because of the risk of losing the case,so the starting point of the transfer of burden of proof is established.Later,the evaluation of evidence fluctuated constantly between True,False or Unknown,the transfer of burden of proof starts from one party to another in a case.The quantity of evidence increase constantly,the probative force of evidence rises alternately,so facts of the case become clear eventually.