Research On The Effect Of Factual Presumption

From the start of the basic problems of presumption of fact, it is order to bring the most controversial issue of this paper, that is, the presumption of fact how to affect the burden of proof. With the sensational cases, it is order to make the argument more persuasive. Specifically, the first part introduced the origin of writing and the problem which would be solved in this paper. The second part discussed the basic point of presumption of fact, that is, it included legal presumption of fact and judicial presumption of fact. Besides, we introduced the constitute and features of the legal presumption of fact and judicial presumption of fact. At last, we distinguished the difference between them, that is, the legal presumption of fact included certainty, compulsory and publicity, but judicial presumption of fact did not have these characteristics. In this paper, we studied the application of presumption of fact, such as:first, the fact of the basis must be true; second, presumption of fact and the premise fact had a high probability; third, only in exhausting all means to identify the facts of the case, or the presumption of fact did not be used; forth, the parties had the right to refute; fifth, Judges must be above the intermediate level court judges. The third part is the core chapters which focused on the facts presumed distribution of burden of proof. Main points are that (1) Professor Li Hao, and Professor Zhang Weiping Put forward the principle of burden of proof, which based on the classification of certain legal requirements:the party who advocated that rights and legal relationship exists, or the original rights and legal relations exist, change or eliminate needed to bear the burden of proof;(2) Professor YeZiqiang thought the allocation of the burden of proof should be "The law expressly provided, in accordance with the law; Although there is no express provision the law, but there are rules of thumb can be followed, according to rules of thumb; Neither the law nor a rule of thumb, it can accord to the principles of fairness and good faith";(3) Professor Chen Gang's theoretical point of view was when judges according to the burden of proof made a judgment, Should be assigned the burden of proof in the following order, Law→Judicial interpretation→Contract Proof→Classification of legal requirements→Interests. On this basis, accept our current laws and judicial practice on the burden of proof,that is, article 64 of Civil Procedure and Evidence of the content of article 2, the parties submitted their claims or refute the other's claims should provide evidence to prove them. If no evidence or insufficient evidence to prove the fact which the parties claimed, the parties who provided the proof should bear the adverse consequences. This is the judicial practice of the burden of proof used in distribution theory. Of course, we summed up the main theory about the dispute on effect of presumption of fact, such as Professor BiYuqian thought that the legal presumption of fact can not only transfer the burden of producing evidence but also transfer the burden of persuasion,but Judicial presumption of fact only transfer the burden of proof; Professor Ye Ziqiang thought that the presumption can only transfer the burden of proof; Professor Pei Cang Ling thought if presumption established, the burden of proof must be bound to transfer. This is the first effect of the presumption and this effect is procedural in nature. The second effect was to bear the adverse consequences of the other side, and this is on the substantive law, and so on. In this part, we concluded that:the fact that the legal presumption can transfer the burden of proof. but Judicial presumption of fact has no effect on the burden of proof. To verify the feasibility and rationality of this argument, we used the cost minimization as analysis tools, and use the expected cost of wrongful convictions and proven cost as a analysis tool in order to fully demonstrated this conclusion. Be demonstrated from the positive and negative aspects, and ultimately affirmed this view, and reveals the fact that economic logic behind the presumption of validity. The fourth part was mainly used this conclusion to re-examine PengYu-case decision, and analysis the miscarriage of justice reasons: 1.There is misconceptions on presumption of the validity of the facts; 2. The judge for a judicial presumption is based on the fact that no uniform rule of thumb requirements, resulting a range of rules of thumb no convincing;3.The judge focused on the burden of producing evidence and neglected the burden of persuasion. And pointed out the problems left over from the case:1. Presumption of fact in particular the judicial presumption of fact how to effect the burden of proof;2. The legality of the evidence;3.Which kinds of rule of thumb can be used.All these issues are worthy of study. If understand these issues, it can help we understand presumption of fact better. At last, we discussed the impact of PengYu case on social similar cases. In this case, as the judge ignored the law and even the decisions shaping the features of social life, people did dare to help others easily,which heated up the social crisis of confidence, as to some people who had bad intentions, this Status was a good time to get Improper benefit and abuse of rights. On the other hand, if a decision can not be satisfied the parties, it maybe bring second instance trial proceedings or retrial. In short, it increased parties and court's cost. It can be said that Peng Yu case brought social negative impact on future similar cases, which means the pursuit of justice need to pay a higher cost. The last part was conclusion about this paper, and mainly summarized the author's point of view on presumption of fact and lack of writing in this paper.