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间接反证概念及理论由德国诉讼法学家罗森贝克所创,目的在于维持其所创立的规范说。在此一理论问世之际,在德国便引起了强烈的论争。该理论传到日本之后成为日本关于证明责任理论研讨论战的主战场。在我国台湾地区以及大陆地区对此问题也进行了相关的研讨。对于间接反证概念以及理论之所以会产生如此大的反响,主要在于这一概念不仅引发了民诉理论中的证明责任理论问题的大讨论,同时其也与要件事实理论相关联,而要件事实理论的上位概念便是诉讼标的理论,而诉讼标的的确立根据又与民事诉讼目的论相关联,从横向上看,要件事实理论又与辩论主义、自由心证等民诉法基本原则相关联,可以说,间接反证概念从纵向及横向上将民诉理论几乎串了一遍,因此其理论中的任何一个问题都会引起民诉理论整体变动,可谓“牵一发而动全身”。本文拟从罗森贝克“证明责任理论”出发,来对间接反证理论讨论中所提到的“间接反证理论与证明责任理论的关系”及相关理论问题予以阐述,从而达到站在罗森贝克的角度理解间接反证的目的。
The concept and theory of indirect evidence is created by Rosenbeck, a German procedural lawyer, whose purpose is to maintain the norms it has created. As this theory came out, there was a strong argument in Germany. After its arrival in Japan, the theory became the main battlefield of Japan’s debate on the theory of burden of proof. In our country Taiwan area and the mainland area also carried on the related discussion to this question. The reason why there is so much repercussion on the concept and theory of indirect evidence is that this concept not only leads to a big discussion on the theory of burden of proof in Civil Litigation Theory but also relates to the theory of requirement facts and the fact theory The superordinate concept is the subject of litigation, and the establishment of the subject of litigation is related to the purpose of civil litigation. From a horizontal perspective, the theory of essential facts is related to the basic principles of Civil Procedure Law, such as debate and free-standing testimony. That indirect concept of indirect evidence from the vertical and horizontal civil rights theory almost in series, so any one of its theory will cause the overall change of civil rights theory can be described as “lead the whole body.” This article intends to set out from Rosenbeck ’s theory of the burden of proof ’ to explain the relationship between the theory of indirect evidence of proof and the theory of burden of proof and the related theoretical issues mentioned in the discussion of indirect evidence - Rosenberg’s point of view to understand the purpose of indirect evidence.