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Burden Of Proof In Transfer Studies

Posted on:2010-01-07Degree:MasterType:Thesis
Country:ChinaCandidate:M HanFull Text:PDF
GTID:2206360278454741Subject:Law
Abstract/Summary:PDF Full Text Request
This paper focuses on the theory of shift of the burden of proof. Based on the concept, the paper analyzes the conditions, basic rules, suggestions for legislation and etc.The first chapter tries to introduce the concept of shift of burden of proof, based on which, it points out the values embodied in shift of burden of proof. Firstly, it gives a detailed introduction of concept of "burden of proof", from which, the process of the concept development can be clearly displayed. As "burden of proof has double meanings, when scholars explain "shift of burden of proof", chances are that they may have different conclusions on the problem that whether the "burden of proof can be shifted or not. The paper analyzes the concept of "shift of burden of proof and explains different theories at the same time. Then, the paper tries to define "shift of burden of proof. Furthermore, the paper also analyzes the values of "shift of burden of proof to clarify its meaning.Chapter two tries to list the conditions of "shift of burden of proof. In this chapter, two conditions are pointed out. Meanwhile, detailed analysis and standard the two conditions are provided.Chapter three focuses on the basic rules of "shift of burden of proof. Generally speaking, "shift of burden of proof always turns out to be a status of "repeatedly shifting between litigants". Through analyzing, this chapter gives an explanation to the relationship between "repeatedly shifting" and issues in litigation. Meanwhile, the writer point out that the standard of proof shall be deemed to be a substantive test of "shift of burden of proof while the judge shall be the procedure standard of it. In this Chapter, the writer also gives an introduction to particularity of "shift of burden of proof in criminal procedure.The fourth chapter is about the design of procedure. On the basis of analyzing the theory of Inner Conviction System, writer highlights the values of design of procedures. Drawing lessons from the design developed by other scholar, writer gives the specific design.The last chapter is to analyze the essentiality of establish the theory of "shift of burden of proof in China, based on which, suggestions of legislation is proposed. It can be clearly seen that China is in urgent need of related theory and law of "shift of burden of proof. Because of lack of theory, the principle as "Who advocates, who has to put to the proof is misused in practice. To guard the rights of litigants, we need to build the theory of "shift of burden of proof. At the same time, basic rules and procedures shall be established in legislation. At the end of this paper, writer gives her suggestion of legislation with a purpose that it will make little contribution to perfect the theory of "shift of burden of proof".
Keywords/Search Tags:Shift of Burden of Proof, Conditions, Basic rules, Procedure Design, Legislation Suggestion
PDF Full Text Request
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