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Research On Mitigation Of The Burden Of Proof

Posted on:2014-10-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:Q Y WeiFull Text:PDF
GTID:1266330422954239Subject:Civil Procedure Law
Abstract/Summary:PDF Full Text Request
With the development of society and economy, the modern litigationcases are becoming more and more, and the evidence is always held byone party in these cases, such as medical disputes, environmental tort, etc.Given the unequal status between parties in these cases, the difficulties ofcollecting evidence are different between the parties, in other words,which is called “weapons inequality”. According to the classical traditionof debate, the parties shall provide evidence to prove the fact propositionsby itself, but the modern litigation especially evidence held by one partyare emerging, one party who bears the burden of proof is often at adisadvantage side, however, the other party who doesn’t bear the burdenof proof holds the evidence, therefore, if the party who bears the burdenof proof does not provide evidence, then the case is in a state of unknownauthenticity, so the judge will be ruled by objective burden of proof,making the party who doesn’t put forward the evidence bearing theburden of proof. But the judgment may be inconsistent with the facts,which goes against the realization of case justice. Therefore, in theprocess of modern litigation, it is necessary that we should develop somemitigation technology of the burden of proof in order to avoid theoccurrence of the unknown authenticity. By reducing the subjectiveburden of proof which should bear by one party, and making the otherparty bear more evidence responsibility, which not only compensating forthe disadvantaged status of burden of proof, but also collecting moreevidence information. Last but not least, it makes the parties have alitigation on the basis of “equality of arms” to guarantee the more fairresults. Throughout the research present situation for mitigation of theburden of proof at home and abroad, it is various. The dissertation mainlyintroduce the mitigation of the burden of proof from Prima Facie Bewies,fishing expedition, disclosure obligation of case facts, spoliation ofevidene. However, these technologies have different emphases. Amongthem, Prima Facie Bewies, fishing expedition, disclosure obligation ofcase facts focus on the expansion of the means of evidence collection,through balancing the proof ability of parties, so as to reduce one party’ssubjective burden of proof, however, spoliation of evidene focus on thesanctions for obstruction of evidence behavior of one party, but it still isan important technology of mitigation of the burden of proof. Althoughthe above several kinds of mitigation technologies have differentemphasis, but the purpose is uniform, which is to alleviate the provedifficulty of one party who bear the burden of proof and avoid emergenceof the unknown state, so as to guarantee the implementation of themaximum case justice.
Keywords/Search Tags:burden of proof, mitigation of the burden of proof, Prima Facie Bewies, fishing expedition, spoliation of evidene, disclosureobligation of case facts
PDF Full Text Request
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