The Study Of Presumption In Civil Procedure

Presumption is an operation through that an unknown fact may be drawn from the establishment of a basic fact. The system of presumption is well-developed in both Anglo-American genealogy of law and continental genealogy of law, which devote much attention to not only legislation but also legal theory. In China, presumption has been emphasized by penal law earlier, and also got much attention on researchment on theory. However nowadays civil aspect has not paid enough attention on presumption in either theory and practice, and except two simple judicial interpretations civil legislation has not prescribed any rules on presumption until now. Then, our judges dare not to apply presumptive rules. Presumption is an very abstract concept, and also a more complicated and hardly-handled problem we have met in our reform on civil trial form. However, as one of important rules of evidence act, presumption give tremendous play to actions and has contributed to not only determine case fact without any evidence but also adjudicate cases quickly. Considering from judicial practice, presumption is an indispensable means of proof for satisfying the needs of court operating. At present in our country, the research on presumption system has several problems as following: First, we have not paid enough attentions on civil presumption, especially the theory research. Our research on presumption is far behind the needs of judicial practice, and can not play a well-guiding affect on it; Secondly, the judicial practice is lack of operating rules on presumption, and presumption has much possibility to be used indiscriminately; lastly, at present in china ,the classify on civil presumption is still keeping on an superficial level, and especially lack of detailed reorganization and classify whichbased on combining civil substantive law with civil procedural law. In order to propel the research on our country's civil presumption system forward, this article approaches several subjects which including the concept of presumption, the value of presumption, the dialectical relationship between presumption and other interrelated concepts, the classify of presumption, the construction and applying of presumption, etc...this article is divided into three parts as foreword, main body and concluding remarks. Details as following.The main body is also divided into several parts as follows: I The concept of presumption. The concept of presumption is a very confused problem. This part reorganized those concepts existing at present and pointed out that presumption was an operation getting an unknown fact that may be drawn from the establishment of a basic fact, and concluded the features of presumption at the same time.II. The dialectical relationship between presumption and other interrelated concepts. In order to clean up the intension and extension of presumption, this part takes more care about the dialectical relationship between presumption and fiction, presumption and apparent proof, presumption and burden of proof, presumption and effect of evidence, etc...III. The value of presumption. In China, the theories or practices are not pay attention to civil presumption because of insufficient knowledge, so this part will give detailed and completed discuss to the value of presumption. This article thinks that presumption has several values and functions as following: 1. The fact could be correct on the whole by using presumption;2.By using presumption the purpose of economical action could bi reached;3.Presumption is contributed to share the burden of evidence; 4.Presumption could alleviate the difficulty of some proof by fact; 5 .Presumption could be contributed to implement some social policies which legislator hope to realize; 6. Presumption is contributed to solve some problems that can not be solved by evidence; 7. Presumption could reduce some unnecessary burden of proof.IV.The classify of presumption. At present in china, the classify on civil presumption is still keeping on an superficial level, and especially lack of detailedreorganization and classify which based on combining civil substantive law with civil procedural law. We believe that in civil actions the level of classify on presumption should not be unitary but multi-levels, and the classify should be divided into three levels. Presumption is the first or highest level, the second level should be classified by certain standards such as the legislative rules, third level should be classified under combining civil substantive law with civil procedural law. Based on those standards, this article is trying to classify the presumption into multi-levels.V. Construction and applying of presumption. Theory is often the precursor of practice, in order to make presumption well applied in practice, this part takes detailed analyzing on construction of presumption and takes out some principles on applying of it as following. Firstly, we should follow the presumption provided by law; Secondly, we should choose general and normal relation of basic presumption of fact, not in rare or exception; Thirdly, we should stipulate the presumption by estoppels with great care; Fourthly, we should try our best to give more rebuttal chances to parties being in a disadvantaged condition because of presumption; At last, we should use presumption very cautiously. Moreover, applying the presumption, this part also points out the principles judges should followed.