论民事诉讼中损害额认定制度之构建

根据证明责任法则,损害的发生以及损害大小的证明均应由主张损害赔偿请求权存在的原告承担。依此,如果损害事实的发生得以证明,而损害大小难以证明或不能证明,则原告的诉讼请求应当得不到支持。但这种判决显然不妥当,为此德国、日本等国家和地区的民事诉讼法确立了损害额认定制度,赋予法官裁量权以解决该难题。目前,我国《侵权责任法》等已经确立了法官酌定损害赔偿额制度,但仍缺乏程序法上的相应支撑。因此,有必要借鉴域外立法经验,在我国民事诉讼法中确立损害额认定制度,以实现实质公平。

Construction of ascertaining institution of amount of damage in civil procedure

According to the rule of burden of proof, the occurrence of damage and the proof of the size of damage should be borne by the plaintiff who claims the right of compensation for damages. Accordingly, if the occurrence of damage fact can be proved, while the size of the damage is difficult to prove or cannot be proved, the claim for litigation of plaintiff should not be supported. But the verdict is clearly not appropriate. Ascertaining institution of amount of damage is established in the civil procedure law of Germany, Japan and other countries, in which discretionary power is given to the judge so as to solve the problem. At present, the ascertaining institution of amount of damage by the judge has been established in PRC Tort Liability Law, but it is still lack of corresponding support of procedural law. Hence, it is necessary to draw lessons from the legislation experiences of foreign countries and establish the ascertaining institution of amount of damage in Chinese civil procedure law, in order to realize substantive fairness.