Indirect Rebuttal Theory

Indirect proof consists of indirect evidence and indirect rebuttal.The academic community has a thorough discussion of indirect evidence,but its corresponding indirect rebuttal research is lagging behind.The traditional indirect rebuttal theory inherited from Rosenbeek focuses on descriptive research from the perspective of burden of proof.This theory defines indirect rebuttal as one of the ways to reduce the burden of proof.It focuses on counter-evidence and puts forward responsibility.It mainly applies to roughly inferring this type of indirect proof.This positioning has greatly limited the development of indirect rebuttal theory.For the core issues involved in indirect rebuttal-how can we scientifically and reasonably assess the utility of indirect rebuttal(whether indirect rebuttal is enough to overturn the conclusions of the claimants)-the traditional indirect rebuttal theory can neither explain nor give an answer.Therefore,aiming at the insufficiency of the traditional indirect rebuttal theory,this article shifts the research of indirect evidence from the perspective of burden of proof to the field of factual identification that is more closely related to indirect rebuttal.It focuses on the argument structure and puts the facts of both the proving party and the anti-licensing party.The relevant evidence is organically woven and combined according to its logical relationship,and the demonstration structure of indirect evidence and indirect evidence is typed and visualized through the demonstration diagram to assist in the formation of free cardiology.Around this research idea,this article is divided into four chapters.Chapter One:Introduction.The introduction part puts forward the research question of this article:How to scientifically and reasonably assess the utility of indirect rebuttal(whether indirect rebuttal is enough to overturn the conclusions of the claimants)?The introduction part outlines the research issues,research significance,research ideas,research methods,and innovation.Given that the core of fact determination is the argumentation,and the assessment model of rationality and acceptability is an argument structure,this article will place indirect rebuttal in the argument structure for discussion,and proposes to use research argument structure to solve the problem of indirect rebuttal of utility appraisal.The research of traditional indirect rebuttal theory is limited to the field of evidence presentation,attached to the theory of the distribution of burden of proof,and uses indirect reversal as a mode of burden reduction to evaluate the effectiveness of indirect rebuttal by rebutting the responsibility of proposing responsibility.The major limitation of this theory is that the theory of indirect rebuttal only applies to cases where the burden of proof can be pre-assigned to indirectly corroborating the facts and indirectly rebutting facts.Therefore,this article believes that the research of indirect counter-evidence should be transferred from the filed of evidence to the field of factual identification that is more closely related to indirect rebuttal.Chapter Two:the outline,problems and reflections of the traditional indirect evidence theory.This chapter reviews the research results and major points of view of the indirect rebuttal of scholars of civil law countries so far,and in particular analyzes the indirect counter-evidence in Germany,the indirect rebuttal in Japan,and the indirect rebuttal structure in China.This chapter points out that Rosenbeck’s argument structure of indirect rebuttal is a structure of rights defense.However,with the establishment of the theory of essential facts,Rosenbeck’s indirect rebuttal argument structure loses its applicable space.Japanese scholars have proposed the theory of localized indirect rebuttal,but the scope of application has been too narrow.The argumentation structure of indirect rebuttal in Japan is limited to the argument structure of the two-level factual argument between the main fact to be proved and the indirect attested fact of the sub-final.The claimants bears the burden of proof of indirect evidence,and the counter-insurer bears indirect evidence of fact.The burden of proof.Based on this idea,Japanese scholars’ researches on indirect rebuttals mainly focus on rebutting proofs,and the main facts of indirect rebuttals are limited to specific types such as causation and indeterminate legal concepts such as faults.These types of indirect proofs are applicable.It is mainly about presumption.This chapter analyzes the two main reasons that caused the indirect application of the indirect disinsurance in Japan.One is to misuse deductive reasoning as the demonstration method;the other is to wrongly position indirect disproving as one of the ways to reduce the burden of proof.The misuse of indirect rebuttal results in the traditional indirect rebuttal theory that has stagnated for nearly half a century.Finally,this chapter also combs the development of indirect rebuttal theory in China.In Mainland China,the study of indirect rebuttal is limited to the translation and introduction of the research results of Germany,Japan,and Taiwan.The understanding is still in the stage of digestion and absorption.It does not attach importance to it,and it is not as universal as it is in Japan.Of the specific types of cases,cases of successful indirect rebuttal are extremely rare,and cases where indirect rebuttal is applied are limited to inability to submit indirect reversal evidence or to rebuttal proof of liability.In summary,this chapter points out that the development of the traditional indirect evidence theory is to change the research field from the proof to the factual determination,and to adjust the research thinking from the violation of the rules of evidence to the adjustment of rules to the formation of the logical evidence based on the recognition of cognitive rules.Chapter Three:Discussing again the argument structure of indirect rebuttal.This chapter points out that the reasoning type of indirect evidence is neither deductive reasoning nor inductive reasoning but plausible reasoning.This chapter introduces the Toulmin model,which clearly illustrates the argument structure of plausible reasoning.Compared with the deductive reasoning syllogism structure,the "Rebuttal" element was added to the Toulmin model.The establishment of a refutation means that the conclusion that the approximation is true is abolished.The structure and function of refutation are similar to those of indirect rebuttal.Therefore,this chapter examines the indirect disambiguation into the argument structure of plausible reasoning,and illustrates the argument structure of double-level factual claims and multi-level factual claims.In the argument structure of the two-level factual assertion,the argument diagrams of the indirect rebuttal in simple structure,sequence structure,combined structure,convergent structure,and divergent structure are discussed.In the argument structure of multi-layer factual claims,various possible indirect disproved argumentative illustrations are discussed.In order to achieve the appraisal of the utility of indirect rebuttal,this chapter discusses the level,rules,procedures and burden of proof of the litigant’s dialogue from the perspective of a dialogue game.Chapter Four:Type and application of indirect rebuttal.This chapter examines the divergent structure and the verification of four other types of argument structure beyond the divergent structure,and classifies the indirect rebuttal types into two types:query-type indirect reversal and debilitating indirect reversal.The object of the former refutation is the logical relationship between the premise and the conclusion—argumentation.The object of the latter refutation is only the conclusion itself,and has nothing to do with the argument.Since the object of refutation of the challenge-type indirect rebuttal is the argumentation,it is closely related to the type of the indirect corroboration.Therefore,this chapter separately from the legal presumption,the general presumption(see the proof),the general fact presumption,and the general indirect proof of the four indirect proof types.Discuss the specific application of indirect rebuttal.As for the weakened indirect rebuttal,this chapter believes that it applies to one of the types of plausible reasoning-abductive reasoning-and evaluates the utility of indirect rebuttal through the best explanation theory.Finally,this chapter uses case analysis to demonstrate the specific application process of indirect reversal.Conclusion.This chapter summarizes the contents of the previous four chapters,and further explains the significance and innovation of the theory and practice of this article.The main theoretical innovation of this paper is:through the introduction of the latest research results in Europe and America,Argument Structure Theory,the indirect rebuttal theory of contradiction in the civil law tradition has been improved.In addition,this paper further develops the theory of argument structure,discusses indirect rebuttals in the argument structure of multi-layer factual claims,and associates all levels of factual claims with indirect counter-evidence and the probable nature of the ultimate proven facts,and discusses each One level of indirect reversal of the probable impact of the facts of the final proof.In terms of practical significance,this paper addresses the difficulties in assessing the effectiveness of indirect reversal of evidence and makes the conclusion of factual determination more reasonable and acceptable.It provides a complete set of indirect counter-evidence methods for counter-inhibitors so that counter-incriminating parties can use specific cases.Types of specific attack defense deployment,that is targeted to accurately guide the counter-insurance party in accordance with a certain order to provide reasonable indirect rebuttal.In addition,this study is more conducive to the realization of the judge’s openness in the form of"seeing"—this paper visualizes the argument structure of indirect and indirect rebuttal through argument diagrams.The argument structure can reflect the argument.The process is exactly a "visible" model.Therefore,it will help to open up the evidence and improve the rationality and acceptability of the argument,thereby improving the trial quality and judicial credibility.Finally,the chapter also discusses the future research direction and the deficiencies of this study.