浅析民商事法官分配证明责任与判断证据的思路与方法
发布时间：2019-03-26 17:02
【摘要】：在证据法研究领域中,证明责任的分配与证据的审查判断是十分重要的课题。在审判实务中,如何正确分配证明责任、合理运用自由心证、恰当衡量证明标准来审查判断认定证据,许多民商事法官感到难以把握。尤其是复杂疑难案件,面对众多的证据材料,法官常有茫然的感觉。这就迫切需要总结归纳一套法官在解决证据问题上清晰严谨的思路与方法。如果我们能够形成一种良好的证明责任分配与证据审查判断思维,那么审理各类民商事案件就可以方向准确、步骤明确、成竹在胸。为满足审判实务的现实需要,本文在适当结合证明责任分配规则部分理论学说、评析解读《民事诉讼法》、《最高人民法院关于民事诉讼证据的若干规定》的相关规定的基础上,分别从民商事法官分配证明责任和判断证据两大主要方面进行分析论述,旨在探究一套分配证明责任和判断证据的思路与方法,以应用于审判实践。由于自由心证与证明标准问题在该研究课题中的重要性与特殊性,我们将二者在证据判断中的运用也作出专门阐述,以使本文的论证更加充分完整。正文共分四章。第一章论述证明责任的分配。该章共分五节,分别阐述民事证明责任的内含、证明责任分配的基本原则、民商案件审理中法官分配证明责任的逻辑与思路、主观证明责任的转移、事实真伪不明情况下客观证明责任的适用。我们认为,法官分配证明责任的逻辑顺序应分以下三步：首先核查是否属于法律或司法解释规定的证明责任倒置情形；如果不适用法定证明责任倒置情形则依一般规则分配证明责任；最后特殊情形下运用衡平规则进行证明责任分配。法官分配证明责任的基本思路是首先确定证明对象,然后从分析法律规范入手来分配证明责任,最后对证明责任的分配进行检验。第二章论述证据的审查判断。该章共分二节,分别阐述法官证据审查的内容与思路、证据审查的具体方法。我们认为审查证据的基本思路是首先审查证据的客观性,其次要审查证据的关联性,最后审查证据的合法性与合理性。第三章论述证据判断中自由心证的运用。该章共分两节,分别阐述自由心证原则的含义、证据判断中自由心证的行使及制约。第四章论述证据判断中证明标准的运用。该章共分二节,分别阐述证明标准的含义与层次划分、法官运用证明标准时应注意的问题。希望本文能对民商事法官走出分配证明责任与审查判断证据迷途解决众多“悬而未决”的棘手案件在思路与方法上有所裨益。
[Abstract]:In the field of evidence law, the distribution of burden of proof and the examination and judgment of evidence are very important issues. In the trial practice, many civil and commercial judges find it difficult to correctly allocate the burden of proof, make reasonable use of free evidence, and properly measure the standard of proof to examine and judge and determine the evidence. In particular, complex and difficult cases, in the face of numerous evidentiary materials, judges often have a feeling of blankness. This is an urgent need to summarize a set of judges in solving the problem of evidence on clear and rigorous ideas and methods. If we can form a good burden of proof distribution and evidence review judgment thinking, then the trial of all kinds of civil and commercial cases can be accurate direction, clear steps, into the chest. In order to meet the practical needs of trial practice, this paper analyzes and interprets the Civil procedure Law in the proper combination of some theories of burden of proof distribution rules. On the basis of the relevant provisions of the Supreme people's Court on the evidence in Civil procedure, this paper analyzes and discusses the distribution of the burden of proof and the judgment of evidence by civil and commercial judges respectively. The purpose of this paper is to explore a set of ideas and methods for assigning burden of proof and judging evidence, so as to apply it to trial practice. Due to the importance and particularity of the problem of free-mind evidence and proof standard in this research topic, we also make a special exposition of the application of the two in evidence judgment, in order to make the argument of this paper fuller and more complete. The text is divided into four chapters. The first chapter discusses the distribution of burden of proof. The chapter is divided into five sections, including the content of civil burden of proof, the basic principle of distribution of burden of proof, the logic and train of thought of the distribution of burden of proof by judges in civil and commercial cases, and the transfer of subjective burden of proof. The application of objective burden of proof under the condition that the truth is unknown. In our view, the logical order in which judges assign the burden of proof should be divided into the following three steps: first, to verify whether the burden of proof is reversed under the provisions of law or judicial interpretation; If the inversion of legal burden of proof is not applicable, the burden of proof is allocated according to the general rules, and the burden of proof is allocated by the equitable rule in the final special case. The basic idea of the judge to allocate the burden of proof is to first determine the object of proof, then start with the analysis of the legal norms to allocate the burden of proof, and finally examine the distribution of the burden of proof. The second chapter discusses the examination and judgment of evidence. This chapter is divided into two sections, respectively elaborated the judge evidence examination content and the train of thought, the evidence examination concrete method. We think that the basic idea of examining the evidence is to examine the objectivity of the evidence, the relevance of the evidence, and the legitimacy and rationality of the evidence. The third chapter discusses the application of free-core evidence in evidence judgment. This chapter is divided into two sections, respectively, explaining the meaning of the principle of free heart evidence, the exercise and restriction of free heart evidence in evidence judgment. The fourth chapter discusses the application of proof standard in evidence judgment. This chapter is divided into two sections, respectively, the meaning and division of the standard of proof, the judge should pay attention to when applying the standard of proof. It is hoped that this paper will be helpful for civil and commercial judges to go out of the way of distributing the burden of proof and examining and judging the evidence to resolve the numerous "outstanding" difficult cases in the way of thinking and methods.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.1;D926.2
本文编号：2447744
[Abstract]:In the field of evidence law, the distribution of burden of proof and the examination and judgment of evidence are very important issues. In the trial practice, many civil and commercial judges find it difficult to correctly allocate the burden of proof, make reasonable use of free evidence, and properly measure the standard of proof to examine and judge and determine the evidence. In particular, complex and difficult cases, in the face of numerous evidentiary materials, judges often have a feeling of blankness. This is an urgent need to summarize a set of judges in solving the problem of evidence on clear and rigorous ideas and methods. If we can form a good burden of proof distribution and evidence review judgment thinking, then the trial of all kinds of civil and commercial cases can be accurate direction, clear steps, into the chest. In order to meet the practical needs of trial practice, this paper analyzes and interprets the Civil procedure Law in the proper combination of some theories of burden of proof distribution rules. On the basis of the relevant provisions of the Supreme people's Court on the evidence in Civil procedure, this paper analyzes and discusses the distribution of the burden of proof and the judgment of evidence by civil and commercial judges respectively. The purpose of this paper is to explore a set of ideas and methods for assigning burden of proof and judging evidence, so as to apply it to trial practice. Due to the importance and particularity of the problem of free-mind evidence and proof standard in this research topic, we also make a special exposition of the application of the two in evidence judgment, in order to make the argument of this paper fuller and more complete. The text is divided into four chapters. The first chapter discusses the distribution of burden of proof. The chapter is divided into five sections, including the content of civil burden of proof, the basic principle of distribution of burden of proof, the logic and train of thought of the distribution of burden of proof by judges in civil and commercial cases, and the transfer of subjective burden of proof. The application of objective burden of proof under the condition that the truth is unknown. In our view, the logical order in which judges assign the burden of proof should be divided into the following three steps: first, to verify whether the burden of proof is reversed under the provisions of law or judicial interpretation; If the inversion of legal burden of proof is not applicable, the burden of proof is allocated according to the general rules, and the burden of proof is allocated by the equitable rule in the final special case. The basic idea of the judge to allocate the burden of proof is to first determine the object of proof, then start with the analysis of the legal norms to allocate the burden of proof, and finally examine the distribution of the burden of proof. The second chapter discusses the examination and judgment of evidence. This chapter is divided into two sections, respectively elaborated the judge evidence examination content and the train of thought, the evidence examination concrete method. We think that the basic idea of examining the evidence is to examine the objectivity of the evidence, the relevance of the evidence, and the legitimacy and rationality of the evidence. The third chapter discusses the application of free-core evidence in evidence judgment. This chapter is divided into two sections, respectively, explaining the meaning of the principle of free heart evidence, the exercise and restriction of free heart evidence in evidence judgment. The fourth chapter discusses the application of proof standard in evidence judgment. This chapter is divided into two sections, respectively, the meaning and division of the standard of proof, the judge should pay attention to when applying the standard of proof. It is hoped that this paper will be helpful for civil and commercial judges to go out of the way of distributing the burden of proof and examining and judging the evidence to resolve the numerous "outstanding" difficult cases in the way of thinking and methods.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.1;D926.2
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