Theory And Application Of Civil Procedure Criterion Of Proof

Criterion of proof of Civil Procedure is an important concept of procedural testification, and also plays an instructive role in juridical practice. This essay tries to specify the standardized definition of civil procedural criterion of proof through analysis of the connotation and extension of criterion of proof, that is, when the client who is responsible for providing proof in civil procedure proves the fact of dispute, the judger should judge if the reality reaches the degree of probability required by law. On the basis of making theoretical analysis of each criterion of proof, the author argues that civil procedure shall take dual criterion of proof, that is, to adopt relatively high standard of probability criterion of proof in ordinary civil procedure, which is also principle type of criterion of proof. For special civil procedure, the criterion of proof with higher probability should be adopted, namely, high probability type of criterion of proof. In order to delineate and distinguish the practicability of these two criterions, the author makes use of practical methods based on analysis of numbers of cases to verify that judgers apply common criterion of proof in ordinary civil procedure, that means that the judger compares the evidences provided by both parties and is very clear in mind that whether the reality exists or not when the proof the party who claims for matters of dispute is more convincing than that provided by the other Party, and makes judgment on the existence of the reality. As regard to special civil procedure, it is required that proof the Party who claims for existence of reality is highly persuasive than that provided by the other Party, and the judger is very clear in mind that whether the reality exists or not; and make judgment on the existence of the reality, that is high probability type of criterion of proof. When applying high probability criterion of proof in criterion of proof as well as under the prerequisite condition that the judger is endowed with discretion when using criterion of proof, the author suggests that relevant evidence regulations shall be constituted to standardize it. This programmed type of regulations, namely, advantageous proof rule, mainly consists of three principles of comprehensive judgment, group judgment and open argument.This essay can be divided into three parts: introduction, main content part and conclusion, in which the main content part can be subdivided into four chapters. In the delineation of the concept of civil procedure criterion of proof in Chapter one, the author classifies varieties of definition into different categories, and draws a conclusion that the definition of criterion of proof is closely related to procedure mode. In Chinese procedure mode, criterion of proof shall involve two targets of both client and judger, and shall get the definition of criterion of proof from the perspective of the judger. In the second Chapter, the author integrates all doctrines of civil procedure criterion of proofs in jurisprudential circle, specifies the rules of the development of theories and makes argument that school of probability is the only criterion of proof of civil procedure. With the theoretical disaggregation of three procedure laws of uniform criterion of proof, and under the condition that civil procedure distinguishing itself from criminal procedure and the administrative procedure, shall the civil procedure itself adopt unitary, dualistic or pluralistic criterion of proof, which is the key point of the third Chapter. In the third Chapter, the author analyses the objective and subjective factors using criterion of proof with testament, demonstrating that the reality and operability of common criterion of proof and special criterion of proof in civil procedure does exist in juridical practice, and argues that dual standard of criterion of proof taking relatively high probability as principle and high probability as exception should be adopted. In order to standardize the application of the criterion of proof, the author comes up with advantageous evidence regulations to specify how the client should adopt civil procedure proof evidence, and regulate in procedure the judger right of free discretion. The whole essay follows the logic clues from theoretical research to practical analysis, and finally to regulating practice with theory. This paper is about 30000 words in total.