Fact Presumption In Civil Procedure

The facts confirmation is the fundamental link in the realm of litigation certification. Judge does not take the referee basis by fact itself, but by the fact condition which proved. Because of the restriction from objective and subjective factors, the judge can not discover the objective fact only fact to extreme. How could judges discover the facts, and solve the dispute efficiently is an important topic put in the theories and the judicial practice. As the important constituent of the presumption rule, fact presumption is a rule of when the fact prove falls into the difficult position, according to the deduction by the common sense, the judge forms a temporarily inner conviction to the factum probandum under the proof standard, and shifts the subjective burden of proof between the litigants, thus helps the part to overcome the condition of facts prove. It can confirm the rights promptly in substantive law, and avoid the unstable condition in society. It has manifested judge's wisdom, and has important practice significance in the judicial activities. However, the existence of incomplete form and probable result in fact presumption, have put an enormous hindrance to the function it should have. On the one hand, it brought the difficult to the technology of legislation, and resulted in the flaw of fact presumption. On the other hand, judge often needs to utilize many fact presumptions in judicial practice. For lack of related rules to restraint and instruct, it is caused to appear many misunderstandings and distort in the judicial practice. It has affected the realization of justice of judicial. To perfect the rule of fact presumption requires the balance between the rights to overcome the limitation in the process of fact presumption. And in evidence legislation, the design and formulation of the fact presumption should follow the principles as principle of judge's independent, principle of opening inner conviction, principle of disposition and principle of good faith. Then, restrict the appliance of fact presumption in the concrete aspect from making sure of the status, as well as the process of start-up and apply and result surveillance. Finally, the assistant system as collegiate system and judges'quality-safeguard system should also be considered.