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On Presumption Of Fault

Posted on:2005-01-31Degree:DoctorType:Dissertation
Country:ChinaCandidate:X XuFull Text:PDF
GTID:1116360152956813Subject:Legal theory
Abstract/Summary:PDF Full Text Request
There are two kinds of deduction in the field of law, right and fact. As people's favorite, deduction of right has been widely studied beyond the system itself, which has been regarded as the guiding idea in law theory. However, the study of fact deduction is limited in the law of evidence, as if it is only the system of procedure. Presumption of fault has really guiding effects to the proof, fact in procedure; it brought about some new systems and theory, and adopted some new guiding principle in the recognition of proof and fact. However, the effect and meaning of presumption of fault is more. Although the presumption of fault we studied is only a material system in tort law, and has limited function, if we read it more, we will find it gives answers to what is law, what law do we need, and what relation is between the realization of positive law's goal and procedure of law, whether the object of procedure can be attached to positive law, etc. The study before was usually limited within the common system of law, the principle and rules, esp. the efficiency of law, and was rare in the material system, the technological rules. This kind of actual effect way is limited in its fail to analyze the material system, and in its fail to connect the reality and theory, and carry out the guidance of the latter to the former.The problem of presumption of fault in the field of tort law is a new development, it came from the need of practice, as the existing tort law cannot adapt itself to the development of society, we need the innovation of system. The old tort law adopted the principle of fault tort, which has the predominance in the distribution of responsibility. First, the burden of fault is rational and progressive, and has great meaning in the protection of people's liberty and economical development; second, fault should be scolded in merit, the censure to fault by law is regarded just, at least, it will get sympathize. However, by the end of 19th century, it was found that old distribution of responsibility is dissatisfying in it's dealing with some new tort cases. The weak always cannot get the deserving protection in the tort cases. And, during that era, besides presumption of fault, new systems emerged, such as rigid distribution of responsibility, distribution of responsibility with no fault, just distribution of responsibility, responsibility insurance, society guarantee, etc., which can all be regarded as the dissatisfactions to old tort law. Comparatively, presumption of fault, founded on the old tort law, was rather good, for it inherited the rational factors of it, and contemporarily, it realized people's expectation to the result of tort.Analyze from the angle of demonstration, presumption of fault is the result of law experience and deduction, not the arbitrariness of the judge, which endows presumption of fault rationality, and can be accommodated by legal system. Whether the law is regarded as an experience or a logic, it indicates the essence of law, determines the method of study, and explains the veracity to know law. presumption of fault is not only an experience from legal practice, but the result of deduction, therefore, it has foundation in reality. As it isn't the random behavior of people, presumption of fault should not be objected as a legal system embodying and realizing the value of law.Justice has always been regarded as merit and ideal of human society, and law the tool to uphold justice. As a system in tort law, presumption of fault should also be appraised by justice. First, the core of presumption of fault was embodies in the change of tort proof's principle, from 'the person who claims should give proof ' to 'the convert of burden of proof'. The change has two reasons, one comes from law of evidence, the other comes from positive law's pursuit to value goal. The proof principle has guiding ideas to the distribution of responsibility, old tort law was based on the protection of the defendant, the burden of proof was assumed by the accuser, b...
Keywords/Search Tags:Presumption
PDF Full Text Request
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