Research On The Litigants' Duty Of Clarifying The Facts

Introduction:In this part,the formation cause,research status,research significance of the litigants' Duty of clarifying the facts in the civil procedure are introduced in detail.Briefly introduce the research status quo of the litigants' duty of clarifying the facts at home and abroad,basing on our country's legislation and judicial practice,point out the importance of the facts—clarification duty in perfecting the system of the mitigation of proof burden in our country,besides,analyze the necessity and feasibility of constructing the facts-clarification duty system in our country.Chapter one:An overview of the the facts-clarification duty.This part is mainly about the detailed introduction of the facts-clarification duty theory.The introduction of the connotation and development venation of the facts-clarification duty,the discussion of its' nature,the legal basis of facts-clarification duty and its' relation with judges' illustration duty,the controversy between generalized application and individualized application theory of the facts-clarification duty are all included,which limited research range for the dissertation.Firstly,start with the purpose and function of the facts-clarification duty,define its concept in the civil action,as well as introducing the legal basis that support the facts-clarification duty,discussing its rationality and necessity.Lastly,discuss the facts-clarification is whether a responsibility or a duty.Through concrete demonstration,this paper argues that it is appropriate to regard it as a duty.Chapter two:Research on the generalized application of the facts-clarification duty.There has always been dispute on the application form of the facts-clarification duty,some people advocate generalized facts-clarification duty and regard it as a principle,others are objected to the generalized facts-clarification duty and take it as an exception,which is the biggest controversy on facts-clarification duty theory.The legal effect of the facts-clarification duty varies enormously in what form it takes.Discuss the application form of facts-clarification duty so as to choose a resonable application form is of great significance to the research of facts-clarification duty theory.Firstly,In view of the fact that the facts-clarification duty is originated in Germany,this paper introduce the debate on generalized facts-clarification duty in German's academic and practical circles in detail.The majority of German academicsdeny the generalized facts-clarification duty,while the practical circle totally deny the existence of generalized facts-clarification duty.Secondly,this paper gives a detailed introduction to the debates on the facts-clarification duty in Taiwan region of China.Generally speaking,most scholars deny the generalized facts-clarification obligation.Most of them believe that the facts-clarification duty should be exceptionally applied,In order to remedy the inherent defect of debating doctrine,while the application of generalized facts-clarification duty will subvert debating doctrine.Practical circles in Taiwan of China also deny the generalized facts-clarification duty.Lastly,This paper expresses the views on whether Germany and Taiwan of China can adopt the generalized facts-clarification duty,and put forward the conclusion that the exceptional facts-clarification duty should be adopted.Chapter three : The specific application of exceptional facts-clarification duty.Based on the representative academic viewpoints,relevant legal provisions and judicial practice at home and abroad concerning the facts-clarification duty,this chapter discussed the specific application of it in detail.Concretely speaking,this chapter explored the legal elements,basic contents,applicable limits and legal effect of facts-clarification duty in detail,attempting to serve as a reference for the construction and perfection of the facts-clarification duty system in our country.Chapter four:Discussion on the introduction of the facts-clarification duty system in our country.This chapter summarizes the current legislative situation of the mitigation mechanism of proof burden in the civil litigation of our country.On this basis,the existing problems and shortcomings are rethinked,Thus the necessity of introducing the facts-clarification duty is obtained.Firstly,Combining with the relevant legal provisions of the mitigation mechanism of proof burden in the civil litigation,this chapter described the concrete content of the mitigation mechanism of proof burden in our country.Secondly,This chapter demonstrates the deficiencies in the legislation of the mitigation mechanism of proof burden in our country's civil litigation one by one from the theoretical and practical levels,pointing out that there are still many defects in the mitigation mechanism of proof burden which need to be improved in our country,whereas facts-clarification duty has special significance and value for perfecting the mitigation mechanism of proof burden in our country.Lastly,This paper pointed out the necessity of introducing the facts-clarification duty system into our country,and analyzed the feasibility of adopting the exceptional facts-clarification duty of the litigants.Chapter five:The Conception of the litigants' facts-clarification duty System in Our Country.To scientifically construct the facts-clarifying duty system in China's civil procedure,This chapter puts forward reasonable ideas on the choice of application forms,legal elements,application scope,method of performance and legal effects of this duty?On one hand,Discuss the choice of the application form of the facts-clarifying duty in our country,combining with the present situation of legislation and judicature in our country,the conclusion is drawn that the exceptional facts-clarifying duty should be adopted?On the other hand,this paper puts forward reasonable ideas on how to construct the facts-clarifying duty system in China.This duty shall be applicable only when neither substantive law nor procedural law has prescribed information presentation obligation,while there aren't any approving norms for the party bearing the burden of proof to claim information.The applicable legal requirements can refer to the“Subordinate claim responsibility and proof burden” which is summarized by the Federal Supreme Court of Germany in the judicial practice.As for the choice of legal effect for this duty,this paper holds that it is more appropriate to adopt“the theory of stratification”.Epilogue Summarize the full text and prospects for the perfection of the facts—clarification duty system in our country.