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The Comparative Analysis On Burden Of Proof

Posted on:2006-01-08Degree:MasterType:Thesis
Country:ChinaCandidate:S Y LiuFull Text:PDF
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The burden of proof is a traditional topic. Once upon a time, it had the legalregulation about sharing out of the burden of proof in ancient Roman Law, although itwas not called burden of proof at that time. Meanwhile, the burden of proof is also ahot topic that the scholars have been in research of. As for the concept of burden ofproof, the principle of its allocation and the standard of proof and so on, lots ofdifferences have been existing in the legal world. This paper uses comparative methodto analyze the difference and similarity of burden of proof among three litigations andthat of it between two legal systems, and puts forward some suggestions on the futuredevelopment of burden of proof. This paper are divided into four parts, namely, chapter I, general description onburden of proof; chapter II, comparison of the system of burden of proof between twolegal families; chapter III, comparative analysis on some questions of burden of proofamong three litigations; chapter IV, legislative conception of further perfection ofburden of proof. Chapter I, general description on Burden of proof. The continent judicial system divides the burden of proof between subjective andobjective ones. Anglo-American judicial system divides the burden of proof betweenthat of offer of proof and that of persuasion. In China, the law world has universallyaccepted the double meaning of burden of proof, namely, dividing it with burden ofproof in action and in consequence. The former means the party has the duty to offerthe evidence in accordance with its assuming fact. The latter means the party thatassumes the fact has to take on the disadvantageous legal consequence if the fact thatis needed to be proved is under the indeterminable condition. Chapter II, comparison of the system of burden of proof between two legalfamilies. Through conclusion, the American legal world views that the main factors of 4distribution of burden of proof are as follows: Policy, Fairness, Possession of Proof,Convenience, Probability, Ordinary Human Experience and so on. On the basis ofthese, it forms three standards of proof, namely, the standard of preponderance ofevidence, the standard of definite and persuasive proof and the standard of proofwithout a reasonable doubt. In Germany, it mainly has three doctrines about burden of proof, namely,Normentheorie, Gefahrenkreistheorie,and Wahrscheinlichkeitstheorei.Normentheorie is a famous doctrine brought up by Rosenberg. He affirms that takingthe classification of essentials of rules of law as the starting point, and mainly usingsuperficial meaning and formation of legal provisions as the standard analyzes thelegal rules and exceptions and the relations between basic regulations andanti-regulations in order to distribute the burden of proof. Gefahrenkreistheorie andWahrscheinlichkeitstheorei are all based on the Normentheorie. Chapter III, comparative analysis on some questions of burden of proof amongthree litigations. "who claims, who proves" is the main distribution rule in civil litigation andcriminal litigation. However, it is in the subordinate position in administrativelitigation. The so called reversion of burden of proof is in the subordinate position incivil and criminal litigation while in the important position in administrative litigation."who claims, who proves" and the reversion of burden of proof interact with eachother, which form the distribution system of burden of proof in our country. The standard of proof means the demand for the subject of litigation that has theduty to prove to use the evidence to prove the disputed fact and the claim of action.According to different litigations, the two judicial systems employ different standardsof proof. As for the standard of proof in criminal litigation, the Anglo-Americanjudicial system uses the description of "...
Keywords/Search Tags:burden of proof, reversion of burden of proof, claim, standard of proof
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