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我国民事诉讼朝向当事人主义的改革中,大力强调当事人的举证责任,一定程度上导致法院对争议案件,偏好通过证明责任进行法律推理来作出判决。但是,法律推理以及作为推理之特殊大前提的证明责任,是承载人们解决法律争议的经验和技术的思维形式,证明责任仅在法院解决纠纷不得已时才适用。证明责任并不必然由持有证明手段的当事人来承担,在事实真伪不明场合,法院借助证明责任作出判决则有可能与事实真相不符,产生不符合具体正义的情形。鉴此,文章结合国内外理论和司法实践,有针对地就避免通过证明责任作出判决之法律技术上的对策,进行讨论,并提出观点。
In our country's civil litigation reform, we emphasize the litigant's burden of proof and to a certain extent lead the court to make the judgment on the controversial cases and the preference to make legal reasoning through the burden of proof. However, legal reasoning and the burden of proof as a special premise of reasoning are the modes of thinking that carry people's experience and technology in settling legal disputes, and the burden of proof is applied only when the courts have settled the dispute. The burden of proof does not necessarily have to be borne by the party holding the means of proof. In cases where the truth of the facts is not known, judgments rendered by the court with the burden of proof may be inconsistent with the facts and give rise to situations that do not conform to the specific justice. In view of this, the article combines domestic and foreign theories and judicial practice, and discusses the legal and technical measures to avoid judgments through the burden of proof, and puts forward some opinions.