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Civil Standard Of Proof In The Marine Trial

Posted on:2004-11-30Degree:MasterType:Thesis
Country:ChinaCandidate:J Y GuoFull Text:PDF
GTID:2206360125461284Subject:International Law
Abstract/Summary:PDF Full Text Request
Standard of proof, also called yardstick of proof or demand of proof, is the degree of proof what the judge is required when determining the facts of a case. With a definite standard of proof, provided that the weight of proof met the standard, the factum probandum is to be proved and the burden of proof of parties is discharged, then the judge can regard the existence of the facts as the basis of judgment. For a long period, the standard of proof has been a difficult problem that perplexing our civil litigation all along in determining the facts of case. The problem has not yet been solved ultimately in theoretical research and trial practice, thus leave law circles of our country the obvious regret. Hence, to investigate civil standard of proof further bears important meanings on civil evidence act theoretically and practically. Maritime trial is a kind of special civil trial, and the evidence of maritime action is a kind of special civil action evidence. Besides the generality with civil action evidence, the evidence of maritime action has its own uniqueness at the same time. The maritime application of the civil standard of proof has particularity and variety different from the past naturally. This dissertation aims at discussing this question and puts forward certain reference for solving maritime dispute correctly in time. I have analysed above-mentioned problems from the following several angles:(1) The design origin of the standard of proof system. Till today, people don't pursue the goal of 'objective facts' as the basis of judgment any more. They have reached the common understanding of 'legal facts'. However, the basic theoretical problem of standard of proof is the dialectical relationship between 'objective facts' and 'legal facts'. Only with the correct understanding of 'legal facts', scientific and rational standard of proof can be set up.(2) The basic mode of civil standard of proof. Here I introduce and comment on Anglo-American law system and Civil law system, the more sophisticated and well-developed system, in order to bring forward a mode for the development of this theory in our country.(3) Chinese mode of standard of proof. In this part, taking the foreign standard of proof system for reference, I place emphasis on the discussion of how to establish Chinese civil standard of proof, which suitable for our concrete situationand actuality of our law system. Also I put forward my viewpoint of 'adopt the standard of high degree of probability, other standard for complement' to apply on the civil action.(4) The economic analysis of standard of proof. Whether the legal regulation is scientific and rational or not, naturally depends on whether it has high-efficient social economic value. It is not only where the basic reason of legal system design is, but also where the effective finality will meet. I explain the value of setting up the standard in terms of economic analysis.(5) The maritime application of standard of proof. I analyse the flexibility of civil standard of proof appeared under special conditions of maritime action and discuss the heightening or lowering of the standard tentatively in theory and practice. Based on the characteristics of maritime case, such as particularity, complexity and urgency, I suggest establishing the applicable standard of the different levels to offer a certain reference for the timely settlement of maritime case.(6) Analytic demonstration of standard of proof. Theory will embody its value only when applying to the practice. I take two cases as example here, validating the question that expounded in this article.In summary, this article, from the theory to the practice, discuss the civil standard of proof and the application of it on the maritime action tentatively, and put forward some immature assumption, expecting to have realistic significance in the development of civil standard of proof theory and its application on maritime action.
Keywords/Search Tags:standard of proof, civil trial, maritime action, high degree of probability, preponderance of probability
PDF Full Text Request
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