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。 In food poisoning damages litigation, the failure of direct evidence, the loss of valid indirect evidence, the repetitiveness of eating behavior and the influence of germ incubation period make the causal relationship proved particularly difficult. In practice, judgments in our country have admitted the existence of causality in the absence of evidence of causality. However, in the process of reasoning, the court only limited itself to the level of consideration of factors that reduce the burden of proof, and did not further mention why in practice the de facto presumption of the causal relationship exists. Both the proof of the two elements of “obstacles to prove the causal relationship to overcome” and “produce a de facto presumption of effect” should be able to fill the gap of theory. The typical case goes through the existence and selection of food poisoning damage litigation application form the key to the proof, the plaintiff in the litigation strategy should be adopted with high probabilistic rule of thumb as a typical phenomenon. Since the applicable form of proof may be contrary to the principle of equality of lawsuits, the judge should promptly demonstrate his testimony on the defendant’s behalf on the basis of a table before the end of the verbal debate. The defendant may, by overturning the causal presumption or proof Judges apply the phenomenon of lack of typical to build a defensive system.