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The Application Of Presumption In Civil Litigation

Posted on:2008-10-21Degree:MasterType:Thesis
Country:ChinaCandidate:G J YuFull Text:PDF
GTID:2166360242973719Subject:Law
Abstract/Summary:PDF Full Text Request
Presumption is an important way of deduction in modern lawsuits,the practice of which is of great significance and value.Proper,rational presumption can alleviate the ab-sence of fact proof,prevent the lawsuit from deadlock,reduce unnecessary proof,improve efficiency of proceedings,reduce the cost,promote fair and rational division of responsi-bility,and realize the enormous function of social justice.With the deeper understanding of presumption,it is more familiar in the court.The present law of our country obviously can't meet the request of the fact,though there are some presumption in the current civil substantive law and law of legal procedure,the Supreme People's Court announced in 2001 im-plemented in the 9th item 3 that offered the legal basis for the fact presumption in the law-suit too,the current law suitable to applying presumption rule is not clear,which cause the presumption appearing liberty and with no rule.Moreover the current law lacks the stan-dardizing in the usage of presumption of judge,cause either not suitable,or wantonly suit-able,which causes great negative effect.Therefore,it's necessary for us to have a deep re-search on the principle and conditions on the basis of understanding the meaning,classifi-cation,characteristic,nature and effect of presumption,in order to form a scientific,sys-tematic understanding,to guide the application of presumption in practice.This article car-ries on preliminary analysis and research on the application principle and condition mainly from the subjective way and free judgment,discussing to the effect and the effect of the presumption is according to the classification,to make different regulations.The presump-tion of law occurs on proof responsibility shift by its stability and maturity,the presump-tion of fact only occurs on the raise responsibility shift because of the uncertain thoughts to the public,and it does not have the proof responsibility shift.The apply of presumption is subject to the propose of justness and reasonality,it mainly has the princi-ple of suitable necessity and must,the principle of experience,the principle of high prob-ability,the principle of thoughts to the public,the principle of retort permission,the prin-ciple of one time and the principle of superority.The suitable conditions of presumption divides into the basic condition which is established on the lawsuits,the process condition which is based on the high probability between the basic facts and presemption facts,and the establishment condition which does not have retort or enough retort to overset the pre-sumption facts.On the basis of above-mentioned understanding,and combining with the present applied status of presumption in our country,this article indicates the insufficien-cies existed in the law,proposes some personal thoughts and suggestions for consumma-tion or the supplement of the future legislation.It mainly has the estimation suitable principled rules establishment(including estimation classification,potency,condition establishments and so on),the procedural rules establishment(including start,thoughts to public,suitable impartation,question and rebuttal,appeal examines and so on procedure rule establishments),through the above legislation in supplement and the consummation, may supply more feasibility legal basis for the judge to use science,reasonable,the feasi-ble rules in trial practice.
Keywords/Search Tags:presumption of law, presumption of fact, responsibility of proof, application principle, application conditions
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