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Civil Presumption Of Fact

Posted on:2010-05-23Degree:MasterType:Thesis
Country:ChinaCandidate:H F LiuFull Text:PDF
Abstract/Summary:PDF Full Text Request
Presumption of fact is a rule that a judge, based on the rule of thumb, deduces an unknown fact from a certain known or proved fact and allows a party to provide evidence to overthrow. It consists of basic facts, rule of thumb and presumed facts.The logical foundation of presumption of fact is the dialectical relation between inevitability and accidentality of dialectical materialism. Inevitability takes a dominant position in the development of all things, which decides the direction of development. it works by displaying inevitable logic. On the other hand, accidentality holds a subordinate position. It decides the unstable and temporary trend and displays itself by accidental logic. Presumption of fact is a way to draw the conclusion closed to the fact by choosing the normal logical relations of inevitability as the logical relation between two things and ignoring the exceptional relation.Presumption of fact doesn't alternate the objective burden of proof since the distribution of the objective burden of proof is pre-stipulated by law and enforced before a lawsuit, and the content of distribution runs through the whole proceeding. therefore, it just alternates the subjective burden of proof as to remedy the fault of inborn injustice to accuser.It is necessary to use presumption of fact because the cognitive capability of human beings is limited, but any litigation is limited to time and temporal means of cognition. As a result, it is nearly impossible to find out the fact completely in a lawsuit. The possibility of existence of this rule depends upon that the final result of a lawsuit is only a legal fact.Presumption of fact helps to distribute the burden of providing proof justly and to reduce some difficulties of factual proof, which avoids a deadlock and achieves the economical goal in a lawsuit. However, owing to the fact that rule of thumb, one element of presumption of fact, has certain qualities such as subjectivity, abstract and probability, the presumption of fact naturally has flaws such as subjectivity, ambiguity and uncertainty of result. therefore ,it is necessary to set out some rules, such as final application, magistrate relief, to regulate it.
Keywords/Search Tags:Presumption of fact, Rule of thumb, Burden of proof
PDF Full Text Request
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