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Research To Application Mechanism Of Civil Presumption

Posted on:2008-06-24Degree:MasterType:Thesis
Country:ChinaCandidate:J L YuanFull Text:PDF
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Civil presumption is related to both civil procedural law and civil substantial law. It is not only the important part of the civil evidence theory, but also the important content of the civil substantial rules. We need to consider many factors to apply the civil presumption in the cases, such as the rules ,explanation, and applation of legal presumption based on policy; actual function of factual presumption based on experience. Application mechanism of civil presumption is an important research domain, where is combined with theory and practice; legislation and judicature; substantial law and procedural law. This passage begin with discussing the definition and classifation to civil presumption, based on the theory foundation and legal effect of presumption, makes some comparation to the charactors of the mechanism between the two legal families ,then focuses on analyzing the actuality of our mechanism and offers some reasons. At last, this passage will provide some advices and ideas to build the application mechanism of civil presumption in our country. The whole passage is divided into six parts to discuss these problems.The first part Brief Scholars gives many different definitions to presumption from different angle, and offer different opinions to presumption. These opinions either overlap or include others, even conflict with others. So far, there is no definition accepted by most of scholars. Thus, it is difficult for me to make a precise definition to presumption. My purpose in this part is to clear the different theories of presumption in general, then conclude the elements or characters of presumption. The last purpose of this part is to research the presumption in common law, civil law and our countryˊpresumption individually. On the basis of the theory above, I will make a further analysis on legal presumption, legal fiction, factual presumption, and primary-face proof.The second part Theoretical basis of presumption The theoretical basis of presumption is probability when analyzed in logic, experience when explained in philosophy, policy when investigated in political science. Further, the theoretical basis of presumption in fact is primarily the experience, and the theoretical basis of presumption in law is mostly the national policy.The third part Legal effect of presumption This passage discusses whether presumption is the premise of the proof burden, and whether presumption decides the distribution of proof burden, and whether presumption transfer the proof burden these three aspects from the view of the relation of presumption and proof burden. To some extent, presumption can avoid applying proof burden, but presumption is not the premise of proof burden. In some situation, presumption can decide the distribution of proof burden; as to the problem of whether presumption can transfer proof burden, it should be analyzed according to different situation.The forth part The comparison of theory and legislation of presumption mechanism in two law family This article compares the application of law presumption in civil law system and fact presumption in Japan, German and Taiwan district, and assimilates something useful to constitute our civil presumption application mechanism.The fifth part The application mechanism of civil presumption in China now. Firstly,it is a review and summary of history of this application.Check from the angle of the relation between inference and duty of prove, there hasnˊ t the application mechanism of civil presumption in the history of China with modern concept. But analyze from the angle of the application of experience rules, there an some mechanism same or similar to the mechanism now.The I will review from the angle of review in procedure law,and investigate in substantial laws,calmly introspect and explore the present legislation of situation of the application mechanism of civil presumption and the problems resulted in judiciary practice.At last,I will analze the grounds of these from these aspects: the guiding thoughts of legislation,theoretical analysis,concepts of litigation,concrete system of jurisdiction and their function system,etc.The sixth part Reflections to establish the application mechanism in our country.It involves:establishing and perfecting the application rules of fact with the civil precdure law. Establishing and perfecting the contents of legal presumption with substantial law,and establishing mechanism of guiding cases concerning factual presumption especially concerning experience rules,and perfecting the mechanism of demonstration of adjudicate.Establishing the encouraging and restricting mechanism of presumption,etc.In the dissertion of this thesis,on accepted concepts to apply,no ripe theortis to refer to ,on concincing conclusions to elaborate.So this thesis is just an attempt or an exploration on this subject,and it is unavoidable that the disusssion and the viewpoints have departures or mistakes.I pray for comments and criticism form all my teachers and colleagues.I will give my sincere gratitudes to you .
Keywords/Search Tags:civil presumption, legal presumption, factual presumption
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