权利推定：实体与程序之间的构造
王洪亮权利推定：实体与程序之间的构造
Presumption of Right: between Substantial Law and Procedural Law
期刊名称：《法学研究》
期刊年份：
作者：王洪亮
单位：清华大学法学院
中文关键词：权利推定;证明负担;取得推定;推定之推翻
英文关键词：presumption of right;burden of proof;presumption of right acquisition;to overturn of presumption
中文摘要：
权利推定须从实体法与程序法相结合的角度予以理解。实体法决定了推定的根据以及推定的对象与范围。被推定的权利通常是包含占有权能并以占有之取得为权利取得要件的物权，债权不能被推定。另一方面，程序法上的原理亦会影响实体法的效果。权利推定主要是取得推定而非状态推定，主要根据在于推定相对人举反证推翻推定的范围。权利推定之推翻本质上为程序法问题，但如何平衡当事人之间的利益也会影响实体权利的实现。在程序中，推定权利人须承担程序性的释明义务，占有人必须说明取得之过程，以便推定相对人有针对性地进行反证。
英文摘要：
Presumption of right should be explored from the perspective combining procedural law with substantial law. Presumption of right can be based on the possession and registration. The former aims to relief possessor’s difficulty to prove property right and the latter aims to establish the effect of publicity of real property and maintain transaction security. Although having different purposes, they adopt the same legal technology of presuming property rights which are difficult to prove according to the facts easy to prove, such as acquisition of possession and registration. Under the legislation in which possession and registration constitute prerequisites for the effective transfer of real rights, it is probable that the appearance coincides with the real situation of right, so it is reasonable to presume right according to possession and registration. Presumption of right means presumption of the acquisition of right, which is supplemented by the presumption of subsistence. Rights which can be presumed are usually with the function to possess and take the acquisition of possession as an element of acquiring real right. Obligatory rights cannot be presumed.According to the rule of presumption of right, the beneficiary of presumption is exempt from burden of proof, but the other party can overturn the presumption by counter evidences. When the beneficiary himself makes a statement about acquisition course, the other party can overturn the presumption by counter evidences concerning to such acquisition course. In the legal procedure, the possessor must explain his acquisition course and sometimes has to explain why he can’t provide information related. If he rejects to explain and still quotes the rule of presumption, his behavior will constitute abuse of right.
全文阅读： 点击下载
