民事法上「經驗法則」之研究

Abstract

我國民事訴訟法第222條第3項規定：「法院依自由心證判斷事實之真偽，不得違背論理及經驗法則。」但經驗法則為抽象的概念，如何適用往往影響訴訟勝敗。但我國實務目前對於經驗法則的適用有浮濫化的現象，如未能詳盡說明何謂經驗法則？如何操作經驗法則？將會架空民事訴訟法上經驗法則的作用，故本文將對民事訴訟法上的經驗法則為研究。 本文將從幾個面向研究經驗法則。首先定義經驗法則的基本概念，具體明確經驗法則的輪廓。參考我國、日本文獻、判決上對經驗法則的說明與理解，可知對經驗法則的定義各有不同，但可認經驗法則的基本內涵，事實上就是人類的共同歷史經驗。從此定義出發，本文分析經驗法則於訴訟法上具備四大機能，並且對經驗法則的四大機能依序列舉國、內外判決說明，從實際案例說明經驗法則在訴訟上扮演的角色與機能。 其次，更針對經驗法則為詳盡分類。因經驗法則是抽象的概念，各國對經驗法則的分類亦有所不同。德國多以經驗法則的蓋然性、可信度由高至低分類；而我國多以經驗法則涉及的係專業或社會生活領域為區分。但歧異的分類基準無法使經驗法則的概念明確具體化，此為本文所不樂見者。因此本文結合此二類分類，並舉我國裁判實例說明，對經驗法則的分類以不同角度分述之。其中對於專門知識經驗，本文將以醫療專業為說明主軸，輔以其他專業領域說明，從醫療訴訟中檢視經驗法則的運用。 最末，本文對於經驗法則的影響，分別從民事訴訟法及民法兩個不同面向詳細說明。經驗法則對民事訴訟法的影響顯著，從法官的審理、心證的形成，以及當事人的訴訟救濟，皆和經驗法則息息相關。然而雖然經驗法則規範於民事訴訟法中，但非謂經驗法則於民法上無適用餘地。本文將詳細闡述經驗法則於民法上的影響，使經驗法則在民法上亦得發揮適用。

Under paragraph 3 of Article 222 of the Code of Civil Procedure of the Republic of China: The court shall not violate the rules of logic and experience in finding the facts by free evaluation. However, the proper application of the Rules of Experience is often linked to winning or losing a court case owing to its abstract concept. In view of the overuse of the Rules of Experience in the law practice of the Republic of China, the purpose of the rule will not be embodied unless the definition and the appropriate method of the Rules of Experience are fully clarified. Thus, this thesis aims to research upon the Rules of Experience on Code of Civil Procedure. This research will study the Rules of Experience from several aspects. First of all, the basic concept of the Rules of Experience will be explicitly defined and explained.Upon reflecting the literature and the court judgement from the Republic of China and Japan, the two countries have different understanding and definition when it comes to the Rules of Experience. Yet, it is concluded that the basic idea of Rules of Experience is the mutual experience shared by people. From this definition, this thesis will analyze the four major functions of the Rules of Experience on the Code of Civil Procedure. In addition, domestic and international court judgements will also be cited to illustrate the four different functions of the Rules of Experience respectively. The roles and functions of the Rules of Experience played will be demonstrated through real cases. Secondly, the Rules of Experience will be classified in detail. In view of the abstract concept of the Rules of Experience, the classification methods vary across countries. For instance, Germany intends to classify the Rules of Experience from high to low probability and credibility levels; however, the Republic of China mostly differentiates the application of the Rules of Experience from the related fields of professions or social life. The discrepancy between the two classification standards will obstruct the concretization of the Rules of Experience, which is unwelcomed in this thesis. Hence, both of the classifications will be combined in this thesis, while the classification of the Rules of Experience will be illustrated from different points of view through domestic trial cases. As far as the experience of specialized knowledge is concerned, this thesis will examine the application of the Rules of Experience in medical litigations, based on medical expertise and the knowledge of other professional fields. Lastly, this thesis will elaborate the influence of the Rules of Experience from two different aspects: The Code of Civil Procedure and the Civil Code. As the Rules of Experience has significant impact on the Code of Civil Procedure, the relation between the two includes the judgement of the judge, building inner conviction, and the judicial adjudication of an interested party. Despite the Rules of Experience is enacted under the code of civil procedure, it is also applicable to the cases of the Civil Code, in which its influence will be illustrated in this thesis.