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Study On The Litigant's Obligation To Explain The Case

Posted on:2019-04-04Degree:DoctorType:Dissertation
Country:ChinaCandidate:X L WangFull Text:PDF
GTID:1366330548952061Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The theory of the litigant's duty to explain the case is a theoretical problem that links ‘traditional' and ‘modern',which on the one hand,points to how,under the basic framework of principle of debate,to adjust the litigation obligation of one party who does not bear the burden of proof,which is a ‘major dilemma of current civil procedure law';on the other hand,on the basis of adhering to the principle of distribution of the burden of proof,relieves the issue of the difficulty of proving arising from the ‘structurally biased evidence' of one party who bears the burden of proof,and can be regarded as amendments and supplements to traditional theories such as principle of debate and distribution of burden of proof.Based on the analysis of the theoretical framework and the applicable rules of the litigant's obligation to explain the case,this article discusses the localization construction of the litigant's obligation to explain the case.In addition to introduction,this article is divided into five chapters.Chapter One: The connotation and nature of the litigant'obligation to explain case.The litigant's obligation to explain the case has not yet formed a uniform term in the mainland of China.The formulation of the ‘litigant's obligation to explain case' is more in line with most of the existing research,and can be conceptually distinguished from terms such as ‘judge's interpretation'.The obligation to explain the case refers to present facts and put forward evidence and other information.Its core concern is whether the party irresponsible for the burden of proof should bear the obligation to present facts and submit evidence in litigation.The litigant's obligation to explain the case and truly stating,the obligation to cooperate with the evidence,and the “information claim right” on the substantive law are overlapped in terms of institutional goals or institutional content,but the litigant's obligation to explain case is different from the connotation and extension of the above concepts,and belongs to different theoretical systems.As for the legal nature of the litigant's obligation to explain the case,there are differences in the views of ‘responsibility theory' and ‘obligation theory'.The ‘obligation theory' is more in line with its system objectives and operational logic.Chapter Two: The background and basis of the litigant's obligation to explain the case.The duty of the parties to explain the case was put forward in the process of amending the debate theory and arguing the theory of distribution of burden of proof.The debate theory and the distribution of burden of proof are the two most important theoretical backgrounds.The ‘secondary burden of pleading' put forward by the German jurisprudence is one of the basis for the production of the obligation to clarify the case.The legislative trend of expansion of the means to collect evidence in the main countries and regions of the civil law system is the institutional background for the litigant's obligation to explain the case.And it's a theoretical tool for the revision of debate theory,and on the basis of not changing the general statement of the burden of proof,with the party's ‘duty' to require the party who does not bear the burden of proof to clarify the case in a specific situation.The litigant's obligation to explain the case and burden of proof are collectively hailed as ‘two centers' of factual issues in civil trials.It requires full justification to demand a party who does not bear the burden of pleading and proof state facts and present evidence in a civil litigation,which is different from the distribution of burden of proof between the parties under the framework of traditional debate theory and burden of proof.The legitimacy of the litigant's obligation to explain the case is sought on the basis of three levels.The realistic basis is the emergence of modern lawsuits which highlights the problem of ‘structurally biased evidence '.The constitutional basis is the parties' right to prove.The procedural basis includes principle of equality of essential weapons,principle of good faith,and cooperation.Chapter Three: The modes and boundaries of the litigant's obligation to explain the case.The most intense part of the parties' disputes concerning the obligation to explain the case is the establishment of a ‘general obligation to explain the case' or ‘limited obligation to explain the case'.The general logic of the deduction of the deontology by the general case demonstrates the rationality of its universal application from the perspective of the basic value of civil litigation,or analogies the existence of the obligations to clarify a general case from the specific system of ‘case clarification' in civil procedure legislation.At the level of application scope,the obligation to explain general cases is based on the definition of ‘analogous discovery',and the interpretation scope of information and evidence is roughly the same as the system of ‘discovery' in the Anglo-American law.Those who have categorized their obligations in the restrictive cases have adopted restrictive methods such as limiting the scope of the object,limiting the scope of cases,and limiting the application period.As far as its essence is concerned,the difference between ‘general' and ‘restricted' reflects different ways of thinking and value judgments.The question that has more discussion value in the theory and practice of the litigant's case-clarification obligation lies in how to set a reasonable scope of application by setting the applicable requirements of the obligation to explain the case.Based on the principle of equality of essential weapons between,a reasonable boundary should be set up for the parties to clarify their obligations in order to balance the obligations of the case with the protection of legitimate information.If they are faced with a criminal prosecution,damage to legitimate rights and interests,business secrets and professional secrets involved in the existence of legitimate information hiding privilege,it should be exempted from the parties to fulfill their obligation to explain the case.Chapter Four: The applicable rules of the litigant's obligation to explain the case.The application of the litigant's obligation to explain the case requires specific elements.As the ‘four essentials' of most opinions,the applicable requirements are set in the following four aspects: The party responsible for the claim and the burden of proof put forward specific ‘cue';objectively with difficulty to argue or prove;cannot explain that the case has not accountability;clarify the case possessing ‘expectation possibility'.The legal effects of violation of the obligation to explain the case include evidence evaluation,conversion of burden of proof,and assumed truth,etc.The ‘corrective layering theory' can be adopted to comprehensively evaluate the ‘sanctions effect' that the obligation subject should bear.The application of the obligation to explain the case may be manifested in different periods of litigation: statement of facts,presentation of evidence,assistance in inspections and appraisal,etc.,and in order to prevent the parties from making arbitrary ‘unknown statements' to avoid the obligation to explain the case,there is still a certain special form of ‘obligation to investigate by the parties' which requires performing information investigation activities under certain circumstances.Chapter Five: The localization construction of the litigant's obligation to explain the case.China's legislation does not clearly specify the general principle of the litigant's obligation to explain the case,but there are specific systems in the legislative and judicial interpretations that reflect the ‘obligations to explain the case',including the parties' statements,the obligation to present documentary evidence,the system of obstruction of proof,and special rules stipulated in substantive law.However,there are deficiencies in current legislation,such as not defining general principles,fewer amounts and types of specific systems,lack of applying requirements,and a single effect of breach of obligations.Judicial practice has emerged in the form of requiring fulfil the statement obligation of the party who does not bear the burden of proof,the application of the burden of proof distribution rules to solve the difficulty of proof,the duty of litigation assistance based on the principle of good faith,the obligation to cooperate with the appraisal,the obligation to present evidence,etc.to achieve the obligation of explaining the case.In the past two or three decades,China's civil procedure law and theories have achieved significant development and changes in the construction of civil lawsuits and the burden of proof.The litigant's obligation to explain the case can be in harmony with the construction of civil lawsuits and replenishes the system of burden of proof.And in the judicial practice,the active application of the obligation to explain the case has emerged,and it has the theoretical basis and practical basis for the introduction of the parties' obligation to clarify the case.The function of the obligation to explain the case should be aimed at the discovery of truth and the promotion of litigation,and supplementing the burden of proof through the ‘interest balancing'.On this basis,by setting application requirements and effects of breach of obliagtion,it will help improve the existing system and construct theoretical and institutional system of obligation to explain the case.
Keywords/Search Tags:Obligation to explain the case, Equality of essential weapons, Truth Discovering, Debate doctrine, Burden of proof
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