论“比例认定”理论

我国当前三大诉讼法实行的是一元的证明要求 ,但在一些工业事故、交通事故以及公害事件所引起的侵权案件的处理中 ,要求认定案件的证据达到确实、充分的程度不利于对受害者的保护。我们应当借鉴以自由心证为背景的“比例认定”理论。“比例认定”是指在侵权案件中 ,法官对损害发生的因果关系没有形成完全的确信时 ,按心证程序比例确定损害赔偿额。

On the Theory of "Judge According to the Proportion of Conviction

All sorts of litigants have the same standard of proof in our contury.But it is unreasonable to adopt the same standard of proof in civil cases as in criminal cases especially in some specific areas.We cannot fully protect the victims in cases related to industrial pollution and accidents if we abopt this standard of proof.We should adopt a new theory which is called"judge according to the proportion of conviction".This theory is based on the theory of "free evaluation of evidence".And it suggests that in some civil litigations we should make a judgement according to the proportion of conviction the judge has when he is not fully satisfied with whether there is a consequce between the behavior of the damages and the cause of the damages.I think we can adopt this theory in cases which are involved with industrial pollution and accidents and then we can make the judgements more reasonable.