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On The System Of Distribution Of Burden Of Proof In Civil Procedure

Posted on:2012-02-15Degree:MasterType:Thesis
Country:ChinaCandidate:H LinFull Text:PDF
Abstract/Summary:PDF Full Text Request
The civil burden of proof is the core of civil litigation and an emphasis of the researchingof civil procedure law. Since the development of the building of the legal system, the distribution of civil burden of proof definitely becomes the focus of the judicialreform. Our distribution of civil burden of proof is lack of innovation in theory and nearlyfree of in legislation. So it is almost rely on the judicial interpretaion in judicialctions.And there are many malpractices in judicial actions too. Therefore the research onthe distribution of civil burden of proof proves itself meaningful and significanttheoretically and practically on the background of judicial reform.Only after realize the real meaning of the civil burden of proof we can better establish the distribution of it. This thesis try to give a new definition about the meaning of the civil burden of proof, and advocates to make the differatiation strictly between the civil burden of proof and production burden.So this thesis doesn't adopt the dominative idea which considers the civil burden of proof have a dual nature. After the redefinition of the civil burden of proof, this thesis takes advantage of comparative analysis, historical analysis andetc, specifically analyzes the achievements and shorts of the legislation and practice of our distribution of civil burden of proof. At last this thesis give some suggestions from abstract to specific to improve and perfect our distribution system through five points:theredefinition of the basic conceptions, the establishment of the general principle, the establishment of the specific rules take the theory of Germany as a base, the application of distribution of discretion and the perfiction of other relative rules. According to our straggly civil law, this thesis doesn't agree with the dominative idea which take the normentheorie as a base while instead of the grundlagentheorie which was brought up before normentheorie in the establishement of specific rules.
Keywords/Search Tags:distribution of civil burden of proof, general principle, specific rules, distribution of discretion
PDF Full Text Request
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