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Table See Proof Of System Research

Posted on:2010-08-13Degree:MasterType:Thesis
Country:ChinaCandidate:J L WangFull Text:PDF
GTID:2206360302476085Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In the law of Evidence, Prima facie Beweis is one of the most ambiguous and difficult problem. Its core and basis is experience rule, But, the feature of experience rule decide that the feature of Prima facie Beweis is innate difficult to understand. Besides, the relation of Prima facie Beweis seems chaos. So, at the present time, scholars'discussion on Prima facie Beweis is divided in theory, in the legislation, Prima facie Beweis hasn't been given the appellation. In theory, there are few scholars that research this system, however, Prima facie Beweis has the unique value, which others can't provided, it can help parties out of the difficulty in proof and help the judge deal with cases, Proof burden allocation may cause unfair, but, Prima facie Beweis can rectify it. It also can authenticate standard of proof's diversification. When defining the conception and nature, this thesis uses a lot of cases, hoping to keep a correspondence between the practice and theory. On this basis, this thesis will elaborate that Prima facie Beweis is necessary and feasible in our country, and then try to give some advice. This thesis totally contains three chapters.Chapter 1 is "conception of Prima facie Beweis": Firstly, it enumerate the conception of Prima facie Beweis in main country and region, appointing that conception is different.Secondly, analyzing the reasons——experience rule, experience rule is the soul of thePrima facie Beweis, but, experience rule has some limitations: infinity,subjectivity,probability, these result in the difficulty when we define the conception. Thirdly, opinions are provided: expanding the scope of the Prima facie Beweis, integrate all of the conception.Chapter 2 is "nature of Prima facie Beweis": Scholars'disscussion on nature is divided. Theories about nature contain four species: Burden of proof,standard of proof,substantive law and evidence evaluation, but, every species has advantages and disadvantages, through demonstration, this thesis believe that the nature is presumption of fact. If the nature is defined the presumption, it will bring several Benefits: Firstly, it can eliminate controversy among scholars; secondly, based on this, Prima facie Beweis can be brought into play better.Chapter 3 is "the present situation and future". That is, whether it's necessary for our country to recommend this system, if it's necessary, how can we perfect it. Although Prima facie Beweis has great worth, it's core and basis——experience rule will influence it affirmatively, Subjectivity coexisting with objectivity is the drawback mainly, and because of probability, the judge may not solve cases correctly. However, overall, this system has the great advantage over the disadvantage, so it's possible for us to recommend this system. Then, whether it's necessary for our country to recommend this system? Chapter 2 has elaborated, the nature of Prima facie Beweis is presumption of fact, there is stipulation about presumption of fact in our legislation, but the stipulation isn't satisfactory: the stipulation about presumption of fact in our legislation is simple, that leads to abuse and discard in judicature. For the reason that, it's necessary for us to recommend this system. In spite of this, there still are lots of tings to do: Discretional evaluation Of evidence hasn't been established completely, General quality of the judge should be Improved, Sources ofthe law are single, how can we integrate Prima facie Beweis into presumption of fact......Inorder to solve these problems, this thesis give some suggestion.
Keywords/Search Tags:Prima facie Beweis, presumption of fact, Burden of proof, standard of proof
PDF Full Text Request
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