—因果关系证明障碍克服的视角

陈 磊

（西南政法大学，重庆 401120）

【摘 要】食物中毒损害赔偿诉讼中，直接证据提出的不能、有效间接证据的灭失、进食行为多次性与病菌潜伏期的影响等特性使得因果关系的证明变得尤为困难。我国实务上已有判决在因果关系证据欠缺的情况下，承认因果关系的存在。然而，在论理过程中，法院仅止步于此类诉讼具备举证责任减轻考量因素的层次，未更进一步提及在个案中，为何可对因果关系的存在作出事实上推定。兼具“克服因果关系证明障碍”与“产生事实上推定效果”两要素的表见证明应可填补上述理论空缺。典型事象经过的存否与选定是食物中毒损害赔偿诉讼适用表见证明的关键，原告在诉讼策略的安排上，应选用盖然性高的经验法则作为典型事象经过。由于适用表见证明可能有违诉讼武器平等原则，因此法官应在言词辩论终结前，适时开示其依表见证明所认证明度的心证于被告一方，被告可通过推翻因果关系的推定或证明法官所适用的事象经过欠缺典型性来构筑防御体系。

【关键词】食物中毒损害赔偿诉讼；表见证明；因果关系；经验法则；典型事象经过

【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226（2015）04-0450-11

The application of prima facie proof in food poisoning actions for damage compensation: from the perspective of overcoming the proof barrier of causation. Chen Lei. Southwest University of Political Science and Law, Chongqing 401120

【Abstract】The characteristics, such as not being able to present direct evidence, loss of effective circumstantial evidence, the influence of repeatedly eating behaviors and the influence of bacteria incubation period, make it particularly difficult to prove causality in food poisoning actions for damage compensation. In practice, there have been some verdicts in China recognizing the existence of causal relationship although lacking evidence of causation. However, in the reasoning process, the court stopped at the level that such proceedings were provided with considerations of reducing the burden of proof, no further mentioning why factual presumption was made for the existence of causal relationship in the case. Prima facie proof, which has the elements of “overcoming the proof barrier of causation” and “having an effect of factual presumption” may fill the theory gap above-mentioned. The existence and selection of typical occurrence are the key elements to apply prima facie proof in food poisoning actions for damage compensation. In the arrangement of litigation strategy, the plaintiff should choose common experience with high probability to be a typical occurrence. As the application of prima facie proof may be contrary to the principle of equality of litigation arms, judges should disclose their evaluation of evidence in accordance with the degree of proof based on prima facie proof to the defendant timely before the end of verbal debate. The defendant may construct a defense system by overthrowing the presumption of causation or by proving that the occurrence the judge adopted is lack of typicality.

【Key Words】 Food poisoning actions for damage compensation, Prima facie proof, Causation, Common experience, Typical occurrence