Presumption And Its Application Mechanism

The development of western system of evidence has generally passed the following historical phases : system of divinity evidence, system of legal evidence and discretionary evaluation system, etc. while our system of evidence has passed the following : system of divinity evidence, system of legal evidence in addition to system of evidence of adjudicators' discretionary judgment and discretionary evaluation established in the phase of the Kuomintang Government . After the PRC was founded , civil lawsuit has had system of realistic evidence as her own system of evidence . The differences of system of discretionary evaluation and system of realistic evidence : (1)different standards of judging the facts of cases. From system of discretionary evaluation of western countries , the standard of evidence of probability is connected with system of discretionary evaluation. The standard of evidence in civil lawsuit of civil law countries and regions is high probability, while the standard of evidence in the common law takes the lead. However, the system of realistic evidence emphasizes on the clarity of the facts, probability can' t enter the realistic ideal. Therefore, scholars only discuss the topic that adjudicators should find out the truth of the cases and adjudicators could find out the truth of the cases, etc. (2)adjudicators' judgment of truth could be examined by the third person or not. The content included in the system of discretionary evaluation is that the adjudicators can judge the case' s truth on their own in the light of law, experience and moral conscience , the third person can hardly examined the courses of judgment and things the third person can examine is limited in the aspects of law, experience and morality, etc. The system of realistic evidence stresses on the objectivity of the cognition and the examination of the cognitive course, so both the appellate procedure and the retrial procedure take on there-examination of the truth as the basic content in our civil procedure. The common grounds of the two systems is that the ability of proof of some kind of specific form of evidence is compulsory provided for by the law. The common ground makes it easy that our system of evidence realizes its conversion to the system of discretionary evaluation. The Evidence Rule is said to reflect the conversion to some degree: in accordance with Article 64 of the Evidence Rule, the judge should examine the evidence thoroughly and objectively in accordance with the legal procedure, judge on his own whether the evidence has the ability of proof and how big the ability of proof is and publicize the reason and result of judgment in accordance with the law, following the professional morality of judges and making use of logical reasoning and everyday experience.After discretionary evaluation comes into the 20th century, the background of western society had a deep variety of which expression is the rapid development of the industrial evolution, the emergence of nationalism and welfaresm and substantial rationality, etc. Western countries, especially the civil law countries begin to look back the traditional discretionary evaluation and criticize the judicature which rebelled the substantial fairness under the traditional discretionary evaluation. It is the trend to make the discretionary evaluation objective. After the Reform and Opening, especially after becoming a member of WTO, we can draw on the experience of the advanced legislation abroad so that we avoid detours which they have done. For this kind of advantage, while the Evidence Rule grants the judges for the free judgment on their own, it establishes binding mechanism to the judges' judgment and emphasize that they must examine and judge the evidence in the light of law, professional morality, logical principle and practical experience. Presumption is a kind of activity to deduce the unknown facts according to the known facts. Presumption of law reflects the legislative policy of the state, while presumption of factreflects the connection among things. Either presumption of facts or presumption of law has compulsory applicability for the adjudicators to affirm the truth of cases. Therefore, presumption may be said to be the binding mechanism of discretionary evaluation and the important method to make discretionary evaluation objective.Before the enforcement of the Evidence Rule, our scholars had broadly studied the presumption and formed some points in common, those points are: presumption of law and presumption of fact are distinguished in pursuance of different foundations and have different legal effects, etc. In addition, some scholars primarily study the presumption which should be stipulated in our law. The studies have some active effects and become the premise of presumption legislation in the Evidence Rule. As the Supreme People' s Court prescribes in Article 75 of Opinions, for the other fact presumed according to legal stipulation or known fact, the client need not put the proof. However, as Article 9, clause 1, item 3 of the Evidence Rule, for the fact presumed according to legal stipulation or known fact and everyday experience, the client need not put the proof. Article 9(2) stipulates that (1) (3) (4) (5) (6) of the preceding clause is not available if the client has the controversy evidence to reverse them. Hence, we can find the legislation on presumption in the Evidence Rule has a great development which is the important contribution of the studies above.But the studies above is not yet the limit of all the research fields of presumption and there is still need to perfect the stipulation on presumption in the Evidence Rule. As the bridge linking the civil procedure act to civil substantive law, how does presumption of law restraint the adjudicators' discretionary evaluation. The basis of presumption of fact is scholastic model, on the basis of which we should try to establish better litigation mechanism for the application of presumption. This thesis totally contains 6 chapters including more than 160,000 characters.Chapter 1 is "the outline of presumption" . This chapter mainly contains 5 specific points: first, the position of presumption in the finding of fact; second, the structure of the finding of fact and presumption; third, the concept of presumption; fourth, the types of presumption; and the fifth part is the function of presumption. The main function of presumption is its procedural effect in civil procedure law, so we should study it with the burden of proof together. In accordance with the relationship between presumption and the burden of proof, the presumption falls into 2 categories.Chapter 2 is "the presumption and its application mechanism in the common law system countries" . Presumption takes a very important seat in their evidence and even in civil procedure of the common law system countries, which has been paid full attention to by scholars. While the thesis introduce the law reports, doctrine and legislation, it concentrates the focal point on the application mechanism of presumption in the common law coutries and then inventively analyses the application mechanism of this kind of presumption. I think that the common law countries mainly implement presumption in two kinds of ways: one is proof by estoppel; the other is to direct the jury. The commom law countries' application mechanism of presumption has their own background of culture and legal system, among which case system, dual trial organization, the argument of grounds of decision and the system of appeal are the basic premise of this mechanism.Chapter 3 is "presumption and its application mechanism in the civil law system countries" . Unlike the common law system coutries, Germany, Japan and our Taiwan District belonging to the civil law system don' t use the word "presumption" directly in their civil procedure law. In accordance with the materials we have collected, only Code de Procedure of France adopts it directly. However, this doesn' t mean that there is no similar procedure mechanism to presumption in these countries. With regard to the presumption of law, it appears a kind oflegal rule firsrtly and reflects one country' s legislative strategies and objectives of value, which exists both in the common law countries and in the civil law countries and districts. With regard to the presumption of fact on the basis of experience, the civil law countries and districts regulate it in different systems. Because the civil law countries and districts don' t implement jury system, but professional judge system. This kind of unified trial organization system is determined not to available in these countries.Chapter 4 is "presumption in ancient China" . The writer thinks thart there is no presumption in modern sense in our history in the view of the connection with burden of proof. The writer analyses the implement of ancient scholastic model and thinks that ancient scholastic model are mainly controlled by adjudicators and the judgment has no any legal effect on the later trial thereon. By contrast, our ancient legal system lays special emphasis on ensuring the correctness of the finding of fact, but it is short of systems and measures that can encourage adjudicators to implement scholastic model audaciously. Today, when we carry on historical culture, we should pay more attention to assimlating positive aspect, but we also need to avoid the rivial of its negative aspect.Chapter 5 is "our legislative and judicial status quo of the civil presumption' s application mechanism" . The chapter is the focal point of the thesis. The objectives of comparative analysis and historical analysis is to dissect our legislative and judicial status quo of civil presumption' s application mechanism, and supplies basis for the referrence of reform suggestions in the next chapter thereon. The writer thinks that Evidence Rule has made presumption fall into 2 types: presumption of fact and presumption of law. Meanwhile, it entrusts presumption disputablely relative effect and attribute. In the aspect of presumption' s application, it establishes argument system of the grounds of decision and provides scholastic model, on the basis of whichthe adjudicators can judge the evidence' s ability of proof and we can' t disobey it. Nevertheless, there are still many problems in legislation and justice on presumption. The designed focal point of judicial system and litigation system excessively stresses on ensuring the correctness of the finding of fact and the application of law, but it doesn' t establish the judicial system which can encourage adjudicators impement scholastic model and the presumption of fact to find the fact of the case actively and audaciously.Chapter 6 is "the perfection of civil presumption system and its application mechanism" . The writer thinks that we should perfect the legislation on civil presumption. On the basis of drawing lessons of scholars' points, the writer specificly puts forward 12 kinds of presumption of law including presumption of birth and presumption of death and their specific rebutal methods. The writer suggests that we should adopt the concept "scholastic model " and "presumption of fact" directly in the civil procedure law in order to save the cost of legislation and justice. The writer thinks that we should cancel the system of looking into the misjudged case and complete some law reports about scholastic model to establish the mechanism to encourage adjudicators to implement scholastic model and presumption of fact to find the fact and have a judgment. In the aspect of perfecting and ensuring the scholastic model' s objective application, the writer advocates further perfecting argument system of the grounds of decision and substantiating the contents thereof. These contents should contain all the segments from evidence to presumption of fact and from presumption of fact to the application of law. At last, the writer suggests that we establish the system to encourage the adjudicators to prove the judgment prudently.