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Discretion Of Judges In The Distribution Of Burden Of Proof In Civil Procedure

Posted on:2011-03-21Degree:MasterType:Thesis
Country:ChinaCandidate:Y G HouFull Text:PDF
Abstract/Summary:PDF Full Text Request
Judicial discretion in the distribution of burden of Proof is an important problem in civil litigation practice, because the theory for burden of proof is the core of civil procedure, and the study of the allocation of burden of proof is the core of the theory, while the theory has a high practical value, so exploring this issue has great theoretical and practical significance. In this paper, I start with a real case, combined with existing relevant legislation. I carried out a preliminary study for the right principles and factors and the applicable conditions, with a view to provide a specimen. Full-text is divided into four parts:The first part, there is a brief case for finding out the focus of controversy. As the fair judes of the case depend on the assumption that the concept of in-depth understanding of the theory of burden of proof,so I elaborate the sense the burden of proof on the law of evidence.The second part, As a key issue involved in this case is a fair distribution of the burden of proof between the parties, the justice should be found on the basis of the authority of statute,so I firstly conclud legislative system of the distribution of burden of proof,the conclusion is that the justice of the case should be based on the provisions of Article 7.I analy the theory of domestic and foreign, and propose that the ideal theory of distribution should be the combination of two theory.Part three to prove the distribution of responsibilities in the exercise of judicial discretion. This section first inspecting the civil law and common law countries, the relevant legislation and many other cases, and combined with our country on the basis of the relevant legislation, indicating the limitations of the existing legislation. The following theory in dealing with various aspects of the allocation of the burden of proof, indicating that the process of judicial discretion and allocation of responsibilities has a profound theoretical basis to prove the necessity of its existence.From the civil law and the substantive law of the various starting value, pointing out the allocation of responsibilities in the judicial discretion is an inherent requirement of various values. secondly to prove that the allocation of responsibilities in terms of the exercise of judicial discretion, that is the fact that authenticity is unknown, the law does not prove that the allocation of responsibilities in respect of such cases.According to judicial interpretation we are still unable to determine the burden of proof burden. Finally, the exercise of discretion should adhere to the principles of fairness and good faith.Part four return to legal practice, to sum up the relevant legislation, relevant theories and research related to the theory r to clarify the conclusions of the case. As typical as well as the complexity of the case, the author made a number of immature proposals.
Keywords/Search Tags:Burden of proof, Judicial discretion, Couterclaim
PDF Full Text Request
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