A Thesis On Proof Standards Of "the High Degree Of Probability"

The proof standard of"the high degree of probability",means that,in civil procedure, the proof on case fact is only necessarily to reach a certain degree, that is, in identifying the fact based on the"probabilities"of such a degree, the judge can reach a discretion from the evidence that fact to be proved is very probable. though other probabilities are not be eliminated completely, the conclusion that the fact to be proved is 80% or 90% degree of probability can be reached.In civil action, the proof standard on"a balance of probabilities"or"preponderance of porbabilities"in Common Law System and that on the"high probabilities"in Civil Law System have no substantial difference, but have some defference on degree, while there is relative low degree requirement of"probabilities"in Common Law System, there is a relative high degree requirement of"probabilities"in Civil Law System. Historically, there is not any proof standards of civil litigation in our civil procedure law, and there is a long-term consideration, from the theoretics to practice, that the only proof task in civil procedure is identifying the"real truth"of the case, and the identified fact should be identical with the"objective truth". Along with the going deeper of the theoretical research in civil litigation, the progress of the reform of civil trial mode, and the introduction of the theories of"legal truth"and"judicial discretion"etc, the proof standard of"the high degree of probability"has been established by the article 73 in the people's republic of china. But, considering the theory and practice status quo in our country, there are many objections, such as, lacking of legal basis of high position or high force, disaccord between theory and practice, predicament of non-rational and low level of applying the proof standards by judges, etc. therefor, some measures should be take in problem solving and perfecting. first, the proof standard of"the high degree of probability"should be estabilished in civil procedure by legislation. second, in applying proof standard of"the high degree of probability"as a general standard of civil procedure in real trial, the exceptional stipulation should be noticed. Third, in measuring the degree of"the high degree of probability", there are two method, percentage method and grade method, providing a option. last but not least, to make the proof standard of"the high degree of probability"normalized, it is indispensable to establish a relevant procedure safeguard system by setting up control rule, perfecting the evidence identifying rule and normalizing the mechanism of judgement rectifying for the judiciary discretion.