證明責任倒置的方法論問題──以善意取得的證明責任之爭為例

Methodological Issues on the Reversal of the Burden of Proof: Taking the Debates on Burden of Proof for Good Faith Acquisition as an Example

嚴格意義上的證明責任倒置是指法官對立法確定的證明責任分配方案的偏離。證明責任倒置在實體法上轉移要件事實真偽不明時的敗訴風險，在程序法上重塑事實審的結構，與證明困境緩解存在本質區別。立法確定的證明責任分配可通過法律解釋被發現，但是證明責任倒置逾越了規範的文義邊界，在方法論上只能被理解為法律續造。因此，證明責任倒置的建議者需要證明現行法在證明責任分配上存在漏洞，並且這種漏洞無法通過證明困境緩解策略化解。然而，在我國，無論是學者還是司法解釋起草者關於善意取得證明責任倒置的論述，都遠遠沒有達到這種要求。澄清證明責任倒置的法律續造性質並明確其論證負擔，旨在強調證明責任分配的規範性特徵，捍衛民事實體法的安定性。

In a strict sense, the reversal of the burden of proof refers to judges' deviating from the allocation of the burden of proof established by legislation. The reversal of the burden of proof, in substantive terms, transfers the risk of losing a lawsuit when essential facts are non liquet, and in procedural terms, reshapes the structure of factual trial. Therefore, this is fundamentally distinct from the alleviation of the difficulties of proving. The allocation of the burden of proof established by legislation can be discovered through legal interpretation; however, the reversal of the burden of proof goes beyond the literal boundaries of the law and can only be understood as legal renewal. Therefore, proponents of the reversal of the burden of proof should demonstrate that there are loopholes in the law regarding the allocation of the burden of proof, and these loopholes cannot be resolved through alleviating strategies of the difficulties of proving. Nevertheless, in China, both scholars and drafters of judicial interpretation have not met this requirement in their arguments of the reversal of the burden of proof in good faith acquisition. Defining the reversal of the burden of proof as legal renewal and clarifying its argumentative requirements contribute to emphasizing the normative features of the allocation of the burden of proof and safeguarding the stability of civil substantive law.