事實與法律：損害的二象性及其展開

Fact and Law：The Duality of Damage and Application

事實與法律在本體論和規範論上都不能實現涇渭分明。這決定了損害也有二象性，既可分為事實意義和法律意義等理想類型，又可依事實或法律屬性建立眾多現實序列。在實體法上，從法律效果的角度反觀損害致其本質上無法純化為事實。要件交錯性從 外部要求綜合其他要件整體判定損害，損害的結構形態則在內部使損害明顯包含了評價要素，兩者均使損害負載了法律屬性，並對規範設計產生了重要影響。程序法也須結合損害的二象性設立具體制度。真正的證明對象應限於損害的事實成分。證明標準須按照損害的具體類型予以調整。事實意義和法律意義的損害都存在推定問題，但適用範圍存在差別。以“得利”替代“損害”和損害法定是損害證明的重要替代機制。

The fact and law can not be separated clearly either on ontology or on norms. Damage has duality that means it has factual meaning and legal meaning in ideal types, and can be lined in real world by fact or law factor. In substantial law, damage can not be purified into fact in nature because of our definition from the viewpoint of legal effect. From the external perspective, it requires to adjudge damage together with others because of the mixture of normative elements, and from the internal perspective, the structural form of damage makes it obviously contain evaluative factors, and both of them make the damage load the nature of law, and have great impact on legislation. The procedure law should set up specific rules according to the duality of damage. The object of proof indeed is the factual factor of damage. The standard of proof should be adjusted on the different type of damage. There is the problem on presumption both in factual meaning and legal meaning damage, but the field or way is different. The important substitution to proof the damage is to replace damage of enrichment and to determine damage by law or judges.