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Research On The Standard Of Proof In Civil Action

Posted on:2008-10-04Degree:MasterType:Thesis
Country:ChinaCandidate:X J GaoFull Text:PDF
GTID:2166360215972673Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The problem of the standard of proof has been a hotspot discussed by the procedure law region these years. In the situation of highly calling on legislating evidence law, the discussion has been more warmly. In the law region of our country, there are different viewpoints on applying what proof standard in the civil action. In these viewpoints, the standard of preponderance of the evidence and the standard of high probability are most prominent. The two viewpoints come from separately the mainland legal system and the British and American legal system evidence system. Which viewpoint is more reasonable that should be adopted by our country becomes the focal point of the discussion.In this paper, the author conducts the discussion to the related questions about the proof standard. Based on the cognition and the understanding to the proof standard question, the author elaborates that the standard of preponderance of the evidence should be adopted in our country's civil action.This paper utilizes the research method of comparison. The author analyzes the two big legal systems about the system and theory of the proof standard and analyzes comparatively the different viewpoints of our country's scholars to the proof standard question. Finally, through the comparative analysis between the high probability standard and the standard of preponderance of the evidence, the author elaborates the rationality of the standard of preponderance of the evidence.This paper has the introduction, the main text, the conclusion. The main text divides into five chapters.The introduction part introduces the content and the importance of the proof standard question, and introduces briefly the concrete regulation in our country's legal system. It also introduces briefly the system of the main text. In the main text, the first chapter is the summary about the proof standard. This paper is an paper studies the proof standard question, therefore has the necessity to explain the proof standard historical development, and its definition. Because the proof standard has close relations with the free evaluation of evidence, the burden of proof as well as the proof scale, therefore this chapter also elaborates their relations and the quantification question of the proof standard.The second chapter mainly elaborates the base of theory about the proof standard. Objective reality and legal reality are the basis of proof standard. Different idea will cause different proof standard. The author thought we must look on them dialectically, unify them organically. Legal reality idea should be taken as the concrete instruction, and objective reality idea should be taken as the macroscopic goal. So we can form a kind of dialectical legal reality idea.The third chapter elaborates the proof standard in the two big legal systems. The author elaborates two kinds of different system and theory of the proof standard in civil action in the British and American legal system and the mainland legal system country. The author carries on the comparison and the analysis to the two big legal system proof standards.The fourth chapter elaborates our country scholars'different views of the proof standard in the civil action, and carries on the comparison and the analysis to each view.The fifth chapter is the key point of this paper. First, through the comparative analysis between the high probability standard and the standard of preponderance of the evidence, the author emphatically elaborates the rationalities of the standard of preponderance of the evidence in discovering reality and settling disputes. Relative to the high probability standard, the author thinks standard of preponderance of the evidence is advantageous to the maximum reality discovery and the solution dispute. And it conforms to the equal principle of litigants and the Principle of the Judge's Neutral. Moreover the preponderance of evidence can be apperceived easily, therefore is practicable. This standard can reduce the hostility to judge by the loser of the lawsuit and reduce the judicative pressure of the judge. The standard of preponderance of the evidence adapts to our country's conditions, and its application cannot lead to abusive lawsuits. So we should refer to the related systems and the theory in the British and American legal system, take the standard of preponderance of the evidence as our country's proof standard in civil action. Next, the quantification question of the standard of preponderance of the evidence is be elaborated. The author things the so-called preponderance can not be quantified accurately. It is only a subjective judgment. The author points out that the weak preponderance does not belong to the standard of preponderance of the evidence. After that, the author elaborates that several questions should be noted when the standard of preponderance of the evidence is applied in practice.The last part of this paper is a conclusion. Here the author restates his own viewpoint. The author says from the angle of judicial practice, he feels the importance and the complexity of the proof standard question profoundly, therefore has written this paper. The author hopes to have some breakthrough.
Keywords/Search Tags:standard of proof, high probability standard, standard of preponderance of the evidence
PDF Full Text Request
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