家事诉讼多元化证明标准反思与层次性构建

    Reflection on Diversified Standards of Proof in Family Proceedings and Hierarchical Construction

    • 摘要: 家事案件纷繁复杂。有学者提出扩大现有特殊证明标准的适用范围,在家事诉讼中建立以高度盖然性为基准、以排除合理怀疑和优势证据为辅助的多元化证明标准体系。不管域外还是国内,主流观点均认为家事诉讼不宜适用排除合理怀疑标准。出于对真实利益的追求、公共利益的维护和家庭伦理道德的指引,对家事诉讼中一些特殊事实有增加或降低证明强度的要求无可厚非。但提高或降低证明标准缺乏理论依据,也容易造成法官恣意裁判,有架空实体法之嫌。家事诉讼不宜在与高度盖然性平行的第二层次抽象证明标准上构建多元化证明标准体系,而应明确以高度盖然性为统一证明标准,并辅之以第三层次具体证明标准,进一步对特殊事实的证明力度和强度提出具体的适宜要求,才是合适之选。

       

      Abstract: As family cases are complicated, some scholars suggest expanding the scope of application of the existing special standard of proof and establishing a diversified system of proof standards in family proceedings with the standard of high probability as basis and beyond reasonable doubt and balance of probabilities as auxiliary. Both extraterritorially and in China, the mainstream view is that the standard of beyond reasonable doubt is not appropriate for family proceedings. Out of the pursuit of truth, public interests and family ethics, it is not wrong to increase or reduce the intensity of proof for some special facts in family proceedings, but raising or reducing the general standard of proof lacks theoretical reasons and is likely to cause judges to make arbitrary decisions, which is suspected of making the substantive law impracticable. The construction of the diversified proof standards system should not be built on the second abstract level parallel to standard of high probability, but should clearly take the high probability as the unified standard, and should be supplemented by the third level of specific standard, thus further puting forward specific and appropriate requirements for the strength and intensity of proof of special facts. This is the appropriate choice.

       

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