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在诉讼过程中,法官发现真实受主客观两方面的限制,无法对每一个要件事实都了如指掌——真伪不明的情况必然存在。在理论界和司法实践中解决这个问题目前主要有两种方法:证明责任的分配与推定的适用。两者既有联系又有区别。在某些情况下,推定即证明责任分配的规范。正确认识推定和证明责任理论有助于指导司法审判的各项工作,从而防止裁判的随意性,使裁判更加客观公正。由于审判方式不同,本文仅探讨部分大陆法系国家与我国关于推定与证明责任分配的关系,英美法系则不在研究之列。
In the process of litigation, the judge found that the true objective and objective subjective restrictions on both, can not have every element of facts are well aware of - the authenticity of the situation is bound to exist. At present, there are mainly two ways to solve this problem in theorists and judicial practice: the application of the burden of proof and the presumption of presumption. There are both connections and differences between the two. In some cases, presumption is the proof of the distribution of responsibility. A correct understanding of the theory of presumption of liability and burden of proof can help guide the judicial work, so as to prevent arbitrariness of referees and make referees more objective and fair. Due to different trial methods, this article only discusses the relationship between some civil law countries and our country about the presumption and the distribution of burden of proof. The common law system is not studied.