诉讼证据的概念重构

对诉讼证据,目前处于通说地位的是事实观的证据论,在这一类定义内容中,因为强调的内容不同,各派学者又有不同的现点,现阶段,学界与实务界对事实观的证据定义提出质疑,转而强调其被动性与诉讼特征;这两类观点均有不足,可将证据定义为:由有权收集的单位或个人依法收集,在诉讼中被用以证明诉讼的主张或者由案件处理机关用以证明案件事实的材料与现象。

Reconstruction of the Concept of Litigation Evidence

For the concept of litigation evidence, what is placed on the top today is the evidence theory based on factual view. Of these concepts, scholars from different schools hold different opinions to this definition because they place emphasis on different contents. Recently both the theoretical and practical circles have ques-tioned the definition of evidence based on factual viewpoint and placed emphasis on its passive nature and litigant features. The present paper points out that the above - mentioned opinions have defects. Evidence should be de-fined as materials or phenomena that can be legally collected and used to prove the allegation in litigation or facts of a case by the organization that accepts the case.