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A Study On The Fact Presumption In Civil Trial Practice

Posted on:2009-02-11Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y CaiFull Text:PDF
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Fact presumption is the presume or deduce which is applied by the Judge in the range of the freedom heart prove according to the case, some evidence or thumb rule during the trial .Fact presumption objectively existenced, whose function can not substituted by the common evidence in civil action, however, the application of the face presumption is the disputable focus between circle of the law and the operator of the justice practice all the time. The main reason for the opposition of the fact presumption in the circle of the law is that they take it highly subjectivity, bad stability, what's more, it may suspiciously give the Judge opportunity of abusing freedom decision power. The current Civil Action Law has no content of fact presumption, although it has been somewhat stipulated in the application opinion of civil action law in 1992 and evidence stipulation in 2002 by the supreme court of people, these stipulations could not distinguish the relationship of the fact presumption and the law presumption, but also lack of content, because they don't give any definite stipulation of important problems of the justice practice operation, such as the application condition, the law effect ,the application rule of the fact presumption. The defect of the current legislation and the weak theory research of the fact presumption result in most judges repulsing, oppugning, recoiling the application of the fact presumption during the trial practice. Even if it accords with the application condition, for there is no definite stipulation in law, they are not bold to apply the fact presumption.Whereas, as a Judge, when the lawsuit encounters the situation of no proved means, brevity of trial, desiderately protection of party of rights and interests. Regardless of the proved basic truth and the proposition from the party, it would be better to envisage the function of the fact presumption in alleviating the prove difficulty, enhancing the efficiency of lawsuit, reducing the cost of lawsuit, maintaining the society of equity and justice.Furthermore, in order to set the application condition strict, reduce the risk of application; we should take into account the construction of the rule setting of the fact presumption application, the procedure criterion, correlation system. We can exert the fact presumption its own function in our civil trial practice.
Keywords/Search Tags:Fact presumption, Thumb rule, Application
PDF Full Text Request
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