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The Burden Of Proof Allocation Of Reconstruction Of The Theory

Posted on:2005-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:L Y HouFull Text:PDF
GTID:2206360122982335Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
As is said, burden of proof is the backbone of procedure. But because of sequelae of customary procedural model in China, it seems that we have not known the importance of burden of proof whatever in theory or in practice. This paper proposes to make some innovations in this area and aims to set out specific standards to distribute burden of proof between parties.There are four parts in this thesis. In the first part, the writer will deny the existing of nonliquet which is generally accepted. For this goal the paper will in the first instance introduce two concepts: judicial syllogism and standard of proof. In succession this thesis will deny existing of nonliquet through the view of linguistics and judicial practice. And the writer will analyze the mistakes of the point of view of Professor Hans Pruetting and Professor Leo Rosenberg. Then for the readers to understand the theory of burden of proof in the following the thesis will explain the historical clue of the theory. In the next part, because burden of proof is a juristic problem not a matter-of-fact problem this paper will further to define burden of proof as finding the real possessor of right in substantial law. And the writer thinks that burden of proof is part of juristic hermeneutics. Therefore the thesis builds its own standards to distribute burden of proof between parties and provides three standards—the explanation of meaning, comparative law and intention—to find the burdener. In the last part for illustrating the standards specifically the thesis will illustrate the application of these standards in contract law and tort law.
Keywords/Search Tags:Reconstruction
PDF Full Text Request
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