On Standard Of Proof In Civil Litigation

To discover the truth is the ageless theme of the lawsuit system, so"objective facts"as the standard of proof has been applied in civil litigation for a long time in China. With the change of the lawsuit mode, the theory of discovering the truth has been changed from"objective fact"to"fact in law". It has been defined for the first time that the"fact in law"would be put into practice as the standard of proof in the civil litigation in the Evidentiary Rules in Common Plea issued by the Supreme People's Court in December, 2001. The standard of proof of"fact in law"in the civil procedures abroad, which is expressed as preponderance of probability in the Common Law, and high degree of probability in the Civil Law, has been put into practice widespreadly.Owing to the low level of the legal environment and legal consciousness among citizens in China, it is hard for the public to accept"fact in law"as the standard of proof, as they pursue the"objective fact"based on the fair justice principle perseveringly. The author agrees that the standard of proof of"fact in law"should be practiced in China on the condition that the"fact in law"is closest to the"objective fact". Both of the two themes have their own restrictions, so fact in law will hardly be approved if it contradicts with objective fact. Fact in law is the fact reappearing in civil action with legal connotations but not the original fact. It is somewhat related to objective fact. Fact in law should be based on objective fact, and mostly reflect the objective fact. With recogniting on the relationship between the"obiective fact"and"fact in law",the author thinks that fact in law is a kind of realism fact,and"obiective fact"is a kind of idealism fact. Fact in law does not deny the degree of objective fact the judge can reach,nor the prusue to objective fact of cognition of lawsuit. It is a kind of fact with legal value judgement, defined by the judge with reviewing and judging the evidence in the lawsuit.With an analysis on the present situation of the standard of proof of fact in law in judicial practice,the author claimes that the principle of being advantageous to discover fact should be insisted,and the establishment of all kinds of lawsuit procedures and evidence regulations should should be established to guarantee the mostly realization of the"obiective fact".The author advises that different standard of proof of"fact in law"should be established in legislation; with the analysis on the obstacle factors which influence the realization of the standard of proof of"fact in law", the author proposes that the preparatory procedure before trial should be perfected to protect the parties'rights in evidence collection; the power to clarify of the courts should be perfected and carried out to guarantee the ability for litigation of the parties adequately. The perfection of the system of Judge Free Heart Card, the disclose of the discretional evaluation on the fact affirmation, and the establishment of a series of lawsuit procedure in legislation will make sure that"fact in law"is closest to the objective fact and becomes a kind of reliable fact.