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On The Burden Of Proof In Civil Procedure

Posted on:2011-07-29Degree:MasterType:Thesis
Country:ChinaCandidate:M TianFull Text:PDF
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Civil burden of proof is an old topic,there already has about its simple but far-reaching beginning in the ancient Roman times, although, at that time ,the main application of this issue is just in the level of providing evidence. Civil burden of proof is also a new concept, although its core content has been found one hundred years ago, compare to the history of this subject, we have no other ideas but call it a new concept. To Civil burden of proof , the first question that we should answer is"what is Civil burden of proof", then do some researches about what it will bring to us, and it is because the continuous answer to these questions in Theorists and judicial practice put to a further understand about Civil burden of proof and an appropriate system building. This thesis start on the theory of the Civil burden of proof, and in the reference of the theories of the contemporary countries'Civil burden of proof, and make a combination with the current judicatory practice, and aim to improving the theories of the Civil burden of proof, to make the guarantee of this justice of Substantive law as our responsibility, investigate the Civil burden of proof and the limitations with Chinese characteristics, and tried to provide some methods for solving these problems. This thesis has four chapters, except for the foreword and peroration.The main task of this foreword is on the subject of argument itself and the definition of the structure of this thesis.By the method of elaborating the Civil burden of proof's basic and nuclear position in that civil litigation, the first chapter reveals that the Civil burden of proof law system's inside mechanism, and then defines the concept of Civil burden of proof. However, Civil burden of proof can be divided into subjective and objective proof to show responsibility. They reflect that through two aspects: one, from the sense of procedure: the other one, from the sense of result. Through the discussion of the theories in the theorists, where the Civil burden of proof to prove, through its mechanism to overcome the fact is not the case of a referee, and promote the development of methods and to laminate on liability mechanisms in the problem of doctrinal, from within the framework for our civil proceedings of the meaning of that responsibility.Firstly, the second chapter makes a thorough inquiry study of the principle of Civil burden of proof in Roman law era, reveals the resources of the distribution system of civil burden of proof, and then give some comments to the most representative theory in the Civil Law Legal System and the Common Law Legal System. Among all the Civil burden of proof theories in the Civil Law Legal System, German jurist, Rosin Baker'classification of legal requirements, is still irreplaceable in the Civil Law Legal System country. The doctrine mainly focuses on the relationship of the facts of the case and Substantive law, has a logical, feasible, and the ability to maintain the legal form of equity, so that it was accepted by Civil Law Legal System countries, and became Germany, Japan and other countries'mainstream theory. But this theory is not fair and impartial in evil. The Common Law Legal System in history is mainly a case law system. The mainstream theory in modern world of the Common Law Legal System hold that, we can only give our individual referee based on the comprehensive consideration of policy, fairness, probability. Finally, the author did some further researches on the foundation of our Civil burden of proof theory system, came to the conclusion that as a country of Civil Law Legal System countries, we should take the theory of the classification of legal requirements as general principle, and apply special burden of proof system to some special civil litigation cases, to realize that distribution of the Civil burden of proof's substantive justice. In addition, it elaborated on our Theorists and judicial practice relating to Civil burden of proof assigned to the special knowledge.Based on the investigation of that Reversed burden of proof's meanings , side up, valuesand internal mechanism, Chapter iii clarified what kind of system the Civil burden of proof is, in the more specific level of proof configure, improving the understanding of mechanism for the civil burden of proof. From the premise of the reversed burden of proof issues'occurrence, this chapter gradually expounded the logic of the operation of the system of reversed civil burden of proof and the important status in civil litigation, and to avoid the major traps in the practice, it focuses on the presentation of the relationship between convert civil burden of proof and the change of burden of proof, the strict liability in civil law, primary-face proof and the obstruction of evidence, then answered the question about whether the convert civil burden of proof is the law expressly providing or judges discretion. And then do some investigation from the angle of legislation, the parties, the judge and other aspects.Chapter four mainly dealt with the specific application of the principle of civil burden of proof in our country's civil litigation, through the contrast of the consequence before and after the implementation of Evidentiary Rules in the Common Pleas, revealed that our civil burden of proof system has made a great leap recently . But also objectively analyzed the present problems existing in the system, and proposed some crude thinking and analysis to solve these problems and improve our civil burden of proof system, including the principle of the distribution of burden of proof, the standard of the distribution of burden of proof, the attribution of the burden of proof standard and the convert of civil burden of proof system.The peroration of this thesis focused on the summarize of the general theory of thread, goals and the views on the core of the outline, and pointed out the further research field in the depth and width of Civil burden of proof from the doctrine, judicial practice, legislative technique, research method, these also constitute a further research concerning the future direction.
Keywords/Search Tags:Burden of Proof, Distribution of Burden of Proof, Convert of Burden of Proof
PDF Full Text Request
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