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真伪不明时法官会面临着实体法适用不能的困境,必须通过某种方法加以克服。不适用法律规范说将“真伪不明”与“被驳回”在法律适用上同等对待,即都会导致实体法规范的不被适用,但却未给出充分的理由。独立于实体法规范的证明责任规范的理论构想,在解决真伪不明案件裁判依据的同时,又导致了法律适用上与实体法规范相脱节。只有将证明责任规范作为实体法的辅助规范,并将证明责任的方法论与内容分配相区分,才能真正解决真伪不明时的法律适用难题。在真伪不明的法律适用上,还应避免两种误区:即将证明责任规范判决等同于败诉判决,以及将法律问题不明等同于事实问题不明。
When the authenticity is unknown, the judge will face the dilemma that the substantive law can not apply and must be overcome in some way. Not applicable Legal norms that will be “unidentified ” and “rejected ” in the application of the law on the same treatment, which will lead to substantive law norms are not applicable, but did not give sufficient reason. Independent of the norms of substantive law to prove the normative norms of the theoretical idea, in resolving the authenticity of the case of unjust referee basis, but also led to the application of law and substantive law norms. Only when the burden of proof is regarded as the auxiliary norms of substantive law and the method of proving responsibility is different from the content distribution can we solve the problem of legal application when the authenticity is unknown. In the application of the law of unidentified authenticity, two kinds of misunderstandings should also be avoided: the imminent verdict of liability norms is equal to the verdict of losing the law, and the legal problems are not the same as the factual questions.