证明责任配置裁量权之反思
霍海红证明责任配置裁量权之反思
Reflection on Discretionary Allocating Burdens of Proof by Judges
期刊名称：《法学研究》
期刊年份：
作者：霍海红
单位：吉林大学法学院
中文关键词：民事诉讼;证明责任配置;自由裁量;制定法
英文关键词：civil procedure;allocating burdens of proof;discretion;the statute
中文摘要：
《最高人民法院关于民事诉讼证据的若干规定》第7条赋予法官证明责任配置自由裁量权，在我国现阶段并不合时宜。我国尚未确立科学的证明责任配置一般规则，司法实践中的裁量需求更多反映出实体法规则的严重欠缺和对证明责任倒置机制的过度依赖。证明责任配置的规则性和可预见性至关重要，在我国民众对证明责任理念还未形成足够认同的背景下，自由裁量规则可能导致人们以抽象而模糊的公平正义理念冲击和取代证明责任配置的一般规则。司法实践中运用证明责任作出判决还未形成常规，法官准确运用证明责任的能力有待提高，法官运用自由裁量权也亟需规范。
英文摘要：
Discretion on allocating burdens of proof by judges is provided by § 7 of Supreme People’s Court’s Rules for Civil Evidences. This provision is far beyond the support from our legislation, jurisdiction and concept, which should not be practiced now. Firstly, scientific general rule of allocating burdens of proof has not been established in current China. Demands for the discretion in judicial practice reflect the lack of substantive rules and the excessive dependence on the conversion of burden of proof. So on one hand, § 7 puts too much emphasis on the less important part, on the other hand, it overestimates the normal demands for the discretion on the conversion of burden of proof. Secondly, the regularity and predictability of allocating burdens of proof is of vital importance. Nowadays, it is acceptable to acquiesce in the discretion on allocating burden of proof by judges and check the discretion with the appealing and retrial process or by reporting to the Supreme People’s Court. This can release the tension between the statute and the development of the society and respect the jurisdiction mood of “rule—application”. As the concept of burden of proof has not been accepted by people, the rule of discretion could make people replace the rules of allocating burdens of proof with the abstract and fuzzy idea of fair and justice, which will corrupt the regularity of allocating burdens of proof. Finally, the facts that it has not formed a routine to use burden of proof to decide on cases in judicial practice, that the capacity of judges to use burden of proof precisely is still to be improved in current China, and that the discretion of judges in allocating burdens of proof needs to be regulated make the rule of the discretion too advanced. Because of the orientation of individual case and social effects of Chinese judges, even there is the case which demands discretion on the conversion of burden of proof while there is no such rule, the judge will still look for discretion. So we should not worry that the judges will stop pursuing justice without § 7, on the contrary, we should worry about whether § 7 will encourage the judges to go too far to be controlled.
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