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Unclear Facts And Burden Of Proof

Posted on:2011-10-07Degree:MasterType:Thesis
Country:ChinaCandidate:D Z JiaFull Text:PDF
GTID:2166360305977068Subject:Procedural Law
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constraints, the facts of the case unclear are always taking place in the proceedings. On the facts of the case–especially the facts of great significance to the judge - can not get to the extent of evidence required, judges can not refuse to judge in such cases. Through two cases caused widespread concern and discussion in the country, the writer finger out the problem that how the judges judge the case with the facts of the case unclear. After the analysis of the principle of fairness of the civil law, the proportion methods, and the mediation and reconciliation style solution, lead to the concept burden of proof.The burden of proof theory provides the legal and theory basis to solve this problem. As one of the core system of civil procedure law, it is precisely to solve the problem that how to judge when the facts of the case is unclear. However, the value of the burden of proof not only to stay here. In fact, the burden of proof is throughout the litigation from the beginning to the end, throughout the litigation inside and outside, and the burden of proof is not an isolated concept, it is close between the basic theory of civil procedure law and many related civil litigation systems. Japanese scholar Ishida Rang have pointed out vividly:"The burden of proof is the backbone of the entire civil action."Famous American scholar Bernard ? Schwartz also said:"In actual litigation, the practical importance of the burden of proof is even more significant than most lawyers recognized. Determining who assume the responsibility to proof always decides who will win and who will lose in the case."The burden of proof system earned much concern since its beginning. It is relatively comprehensive and in depth, operating relatively smoothly in foreign. However, in our country, the burden of proof is a highly controversial issue. On one hand, in our research and teaching of Civil Procedure Law, the burden of proof exists as an independent chapter, a lot of monographs appeared in this area in recent years, scholars have done much useful research and study on this issue for many years, provides some theoretical bases for the development of the burden of proof. Legislation is gradually inclining to the burden of proof, the revise of civil procedure law and a number of judicial interpretation, and the continuous years of judicial practice was the issue in depth study provides the bases of law and practice - these factors constitute the"opportunity"of the burden of proof research in our country. On the other hand we In view of lack of awareness and understanding of the means of capacity should also realize that, due to our research of the burden of proof system started relatively late, in the obvious related issue of inadequate preparation and study the theory of relative hysteresis, is still at a very immature stage. And our current theory and practice of justice sector in many issues related to uncertainty and changes in the national judicial system back and forward, as well as a large number of disputes breaking out, coupled with the burden of proof itself is a very complex issue, so that our civil liability system in the process of research and debate over the differences - and these factors constitute the"challenges"of the burden of proof research in our country.Facing the"opportunity"and the"challenges"coexisting at the same time, the author try to arrange and clarify the unclear facts and the theory of the burden of proof, through the civil law countries and regions, especially Germany and Japan related to theory introduction and common law practice in the relevant issues, current the legislation and practice in our country and provide a thought how to make good use of the burden of proof system facing the facts of the case is unclear in our civil action.The article includes three parts: the introduction, the body, and the conclusion.Introduction: By the cases point out the unclear facts, and how the judge judged in the cases.The body includes four parts: What the unclear facts is; the judge's judge with the facts unclear; the role of the judges and the parties with the judge by the burden of proof; the theory and the practice of the burden of proof in our country.PartⅠ: What the unclear facts are. Based on the analysis of the"facts"and the"unclear"clear the problem of what the unclear facts are. First, the"facts"of the unclear facts refers to the main facts of the entity; neither includes the indirect facts nor supplement facts. Do not include procedures facts too. Second, the combination of the objective truth, the legal truth that fingers out that our country at the moment the"amended"objective truth should be adopted.PartⅡ: The judge's judge with the facts unclear. Based on the principle of fairness, the applicable law and the proportion that, with the settlement of disputes conciliation solution, led to the burden of proof concept. And that face the facts, civil justice proof-when the application of the principle and the method that a proportion of solving problems, mediation and settlement of dispute solution due to parties shall voluntarily and accepted as the premise, its effect is very limited too. Then outlined the concept and development of the burden of proof, points out we should adopt the behavior and the result two aspects of the burden of proof, and the result of the sense is the concept that the core and essence of the burden of proof.PartⅢ: The role of the judges and the parties with the judge by the burden of proof. In view of the important status and influence of the burden of proof, in this part, analysis how to set the role of the judges and the parties with the judge by the burden of proof. Due to this problem concerns with the other system, so by the influence under adversary system and the judges'power of explanation, finger out the development of these systems. From the parties on the extreme stress and the evidence collected in the survey of judges on its extreme limit, by introducing the power of explanation, the real obligation, and justice driven by the movement of cooperation, set the terms of investigating and collecting evidence of judges exception requirements"carefully". This is significantly different, and may provide some inspiration and reference to solve this problem in our country.PartⅣ: The theory and the practice of the burden of proof in our country. Based on the development of the burden of proof, with the reality of our country, finger out the burden of proof in our country is"wandering". We should strengthen the value of seeking for the stability of the law, focus on the social impact of the case, with the certainty of law and guidance role, lead the citizen's awareness of the rules, the awareness of the law, and the construction of the order of law.Conclusion: The author further implicit the purpose of this article and supply some countermeasures for his own issues that may arise.
Keywords/Search Tags:Unclear Facts, Burden of Proof, Adversary System, Power of Interpretation
PDF Full Text Request
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