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Research On Civil Presumption Rule

Posted on:2016-02-23Degree:DoctorType:Dissertation
Country:ChinaCandidate:L L ZhangFull Text:PDF
GTID:1226330482452155Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Civil presumption rule is a concept of law which stretches across the civil substantive law and the civil procedural law, its unique characteristic of presumption makes it have a very unique and important position in civil law system, however, because of the complex feature that is the blending of substantive law and procedural law, it becomes an extremely complex concept in civil law system. The understanding of the presumption of the Chinese academic circles also presents a scene that is the opinions are all different and the logic is confusing, the reason of which is the understanding about the presumption and related concepts and rules is not deep enough and the understanding about the basic outline of the presumption rules is not clear enough. Hence, it is very necessary to re-clarify the basic concepts and rules in theory and arrange and reconstruct the civil presumption rules as a whole combining with the specific provisions from the current law.The core concept of the civil presumption rule is presumption which can be defined as the process of law/judge infers the unknown facts in accordance with the known facts. As a legal norm, the defining of the presumption rule depends on the classification discussion about the presumption, and the most popular category is the legal presumption and the factual presumption. Just like the presumption, the legal presumption and the factual presumption are also easily lead to misunderstanding, the main focus of debate is that whether both of them are individual and whether there are differences between them. In fact, there are significant differences between the legal presumption and the factual presumption mainly in nature, the basis of establishing, the degree of probability and the effect of application, the most essential difference is the legal presumption is forced and the factual presumption is not which contributes to the difference in the effect of application. After ascertaining the differences between the legal presumption and the factual presumption, we can conclude that the presumption rule is the legal rule which stipulates the legal presumption and the legal presumption is the presumption stipulated by the presumption rule.Presumption rule gives the legal presumption enforcement, so the analysis on the basis of presumption rule can not only support the legitimacy of the reason of enacting the legal presumption but also testify whether the presumption rule in current law system meets the requirements of legitimacy. In general, the basis of presumption rule includes three types:the basis of epistemology, the basis of methodology, and the basis of value. The basis of epistemology is that because of the limitations and relativity of human understanding, the legal reality should become the justice standard of proof instead of the objective reality, and presumption embodies fully this epistemological claim as a significant procedural characteristic of presumption rule. The basis of methodology is that the normal link chosen by the presumption rule reflects the probability of the rule of thumb, and the probability of the rule of thumb comes from the internal logic structure among things which is the probability theory-the adoption of such methodology is to further ensure the maximum degree of authenticity and legitimacy of the conclusion. The value basis is the core basis of the presumption rule, and it is also one of the important differences between legal presumption and factual presumption, it includes the principle of litigation economy, the principle of equality of arm, the principle of proximity to prove, and other public policy principles.Civil presumption rule can be divided into different types, and the popular classification criteria includes whether the presumption can be rebuttable, whether there are basic facts and the object of presumption. According to whether the presumption can be rebuttable, the presumption rule can be divided into rebuttable presumption rule and non-rebuttable presumption rule. The rebuttable presumption is more common and it includes "cannot be proven" type, "can be proven" type, and "excerpt..." type. Non-rebuttable presumption rule is similar to fiction rule, but there are differences in the basis of establishing, implementation and the contents of proving between them. The presumption rule can be divided into direct presumption rule and inference presumption rule. The direct presumption rule is the rule according to which the presumed fact can be obtained directly when the other elemental facts are proved, it shares the same effect of application with the inversion rule of burden of proof. Inference presumption rule is a rule according to which the presumed fact can be obtained based on the basic facts different from the other elemental facts, and it can be divided into general and special inference presumption rule, the particularity of the latter of which is that it regards the partial proving of the presumed facts as the basic facts. According to the object of presumption, presumption rule can be divided into fact presumption rule and right presumption rule, the latter of which includes the presumption rule of co-ownership, the presumption of right of real property register, and the presumption of right of possession of movable property.The issues about application of presumption rule includes the prerequisite for application, the effect of application, and exclusion of the effect. The prerequisite is to interpret and identify correctly the type of the presumption rule and determine when and how to apply the presumption. Because burden of proof which is closely related to the application of presumption is easily misunderstood, it is necessary to clarify some relevant concepts about burden of proof-the generalized burden of proof includes the burden of introducing evidence and narrow burden of proof, the former is the responsibility of the parties to introduce evidence to avoid losing and the latter is the responsibility of the parties to convince the judge believe the facts are real. There are several theories about the effect of application of presumption, and we can conclude that the effect is the transfer of the burden of proof except for the transfer of the burden of introducing evidence. According to rebuttable presumption rule, the party can rebut the presumption on the presumed fact and the basic fact. According to the fact presumption rule, the party can prove the presumed facts are unreal with contrary evidence, meanwhile, the party also can rebut the right presumption with contrary evidence only if the right presumption rule can be interpreted into a fact presumption rule referring to the German law.
Keywords/Search Tags:presumption rule, legal presumption, types of rules, effect of application, the burden of proof
PDF Full Text Request
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