論具體舉證責任與抽象證明責任的二元分立

On the Difference between Concrete Burden of Proof and Abstract Burden of Proof

“舉證責任”的原初涵義就是當事人運用證據對訴訟中的主張加以證明的行為責任，這一概念的源頭並非現代證明責任理論，因此將其歸入證明責任內涵的一部分必然引起證明責任作為一個整體概念的性質難以界定，並導致其分配標準與分配規範模糊不清的現象。肯定抽象“證明責任”與具體“舉證責任”各自獨立的“二元分立”概念格局，並由各自功能互補形成“雙層調控”證明行為機制，將使訴訟案件事實的呈現更加準確與完整。具體舉證責任與抽象證明責任、主觀證明責任及具體提供證據責任等證明責任周邊概念各異其趣。具體舉證責任概念提出的必要性起因於客觀證明責任理論規範訴訟證明活動的模糊性與有限性。應在承認證明責任總體和最終的規範作用的前提下，重視具體舉證責任對具體證明行為過程的直接調整。

The concrete burden of proof in originally meaning is that the responsibility of parties put forward evidence to prove the claims in the lawsuit The source of this concept is not actually the modern burden of proof theory. and therefore included it in the burden of proof as part of its meaning would inevitably lead to the nature of the burden of proof as a whole concept difficult to define, and lead to the allocation criteria and allocation norms blurred In recognition of the burden of proof and the concrete burden of proof different from each other and form a dual discrete pattern, and the double layers regulation proof behavioral mechanisms, in composition of the both concept tools will allow the facts of the case presents more accurate and complete The concrete burden of proof and abstract burden of proof, the subjective burden of proof and the burden of producing evidence are not the same The necessity of introducing the concept of concrete burden of proof due to which is both vague and limited by the burden of proof theory to guide the parties behavior of proof We should recognize that the burden of proof as the overall and final regulatory role Also should pay attention to the direct adjustment of the concrete burden of proof on the process of concrete proof activities.