The proving freedom principle of trading with comparative study in France trading law and its critic

Abstract: More attention to the social justice and uncover the truth, influenced on the rules of evidence and has created the principle of the persuasion of proof as well as the social order and the importance of reasonable dispute settlement have created the principle of legality of evidence in the common law; but in the commercial law of France, the necessity of speed and reliability in business affairs, has provided the principle of freedom of proof as the minimum effect (the removal of the restrictions of evidence by the court) and the maximum effect (equivalent to the principle of the persuasion of proof ); the application of this principle has the two main requirements: 1) the disputes will be business affairs, 2) 2-the reason for proving will be used against the merchant; This principle has as well as the exceptions that the French legal thought will be criticized in the expression of exceptions. This principle has some effects that the main effect is the removal of restrictions on admission of evidence in the field of the commercial law; the status of this principle in the Iranian law has been some ambiguity in order to the historically and require to the historical survey as well as the is seemly the despite the principle will be considered in the new draft Law of trade of Iran and the draft of commercial of criminal procedure Act of Iran. Keywords: evidence, proof system, Freedom of proof, Iranian trade Law, Iranian business law, French business law摘要：对社会正义与真相查明的愈发重视，加之对证据规则的影响，催生了证明说服原则（principle of the persuasion of proof）；同时，社会秩序的维系与合理纠纷解决的重要性，共同确立了普通法体系下的证据合法性原则（principle of legality of evidence）。但在法国商事法中，商事活动对效率与可靠性的迫切需求，确立了证明自由原则（Freedom of proof），该原则包含两层效力：最低效力层面为解除法院对证据的限制，最高效力层面则等同于前述证明说服原则。该原则的适用需满足两项核心要件：1）纠纷属于商事范畴；2）证明事由须针对商事主体。该原则亦设有例外条款，法国法学界曾就例外条款的表述方式对该原则提出批判。该原则具备若干效力，其中核心效力为解除商事领域内证据准入的限制。该原则在伊朗法律中的地位尚存一定模糊性，其具有历史沿革属性，需开展历史考察；尽管如此，伊朗新贸易法草案与伊朗刑事诉讼商事程序草案均考虑纳入该原则。关键词：证据（evidence）、证明制度（proof system）、证明自由原则（Freedom of proof）、伊朗贸易法（Iranian trade Law）、伊朗商事法（Iranian business law）、法国商事法（French business law）