司法证明机理：一个亟待开拓的研究领域
封利强司法证明机理：一个亟待开拓的研究领域
Principles of Judicial Proof: A New Research Field Urgently Needed to Be Explored
期刊名称：《法学研究》
期刊年份：
作者：封利强
单位：浙江工商大学诉讼法学研究中心
中文关键词：司法证明;证明机理;证明科学;新证据学
英文关键词：judicial proof;principles of proof;science of proof;New Evidence Scholarship
中文摘要：
司法证明机理是指由多方证明主体共同参与进行证据推理活动的内在规律和原理。没有对证明机理的深入把握，就难以通过“证据群”获得可靠的事实认定结论。近年来，英美学者致力于对证明机理的探索，开辟了一个全新的交叉学科领域。证明机理的研究对于摆脱司法证明的现实困境具有重要意义。我们应当批判地吸收和借鉴英美“新证据学”的研究成果，综合运用系统论、逻辑学、心理学、语言学、行为科学等多种研究方法进行系统化研究，以期实现司法证明的科学化。
英文摘要：
The principles of judicial proof refer to the inherent laws and theories of the evidence reasoning activities participated jointly by all subjects of proof. They aim to reveal the complex interactive relationships among subjects of proof, means of proof and objects of proof in the course of evidence reasoning. Without the thorough understanding of the principles of proof, we cannot reach reliable conclusions by mixed masses of evidence. At present, Chinese scholars have not paid close attention to the principles of proof yet, which has been attached on the research of evidence law in the forms of experiences and skills. As a matter of fact, judicial proof depends not only on perfect evidence law but also on scientific mechanism of fact-finding. Therefore, the research of the principles of proof is of great importance for us to solve the present dilemma of judicial proof.The current significant turn of Anglo-American evidence scholarship, namely the rise of the New Evidence Scholarship, has been largely ignored by Chinese scholars, whose research still focuses on the Anglo-American evidence rules. In recent decades, Anglo-American scholars have rediscovered Wigmore’s thoughts of science of judicial proof, and applied multidiscipline methods, such as mathematics, logics, psychology and so on, to explore the principles of proof, thus created a new interdisciplinary field. The main branches of NES include but are not limited to probability and proof, chart method of analysis, psychology and evidence, studies of discourse, legal argumentation and evidence, integrated science of evidence, artificial intelligence and proof, etc. Although the achievement of NES should not be underestimated, there are several defects within the research due to the background of adversary system and jury system.The thoughts of NES have offered domestic scholars beneficial enlightenment for the exploration of the principles of proof. However, we should critically absorb and draw lessons from their research results according to our national conditions. The object of our research is the reasoning mechanism in judicial proof, which is an area of interdiscipline. As a result of the significant differences of epistemology tradition, litigation system and judicial structure between the Anglo-American countries and China, we should choose a different path from Anglo-American scholars.
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