Application Of Presumption Of Fact In Civil Litigation

In September 2007, The People's Court of Drum Tower District in Nanjing announced the first instance verdict on Peng Yu case which had been the focus of the community. Law experts had a heated discussion from various angles on the Peng Yu case, from which we can see that the Presumption of fact in the process became a key presumption of fact and the most controversial issue. The presumption of fact is playing an more and more important role in alleviating the difficulties of proof, distributing the burden of proof between the parties reasonablely and fairly, helping the judges settle the case more efficiency, saving the lawsuit cost and improving the efficiency of lawsuit. While realizing its great importance, we must also be aware of its limitations. Presumption of fact is an incomplete way of proof, discreted by judges. And it must be with subjectivity as well as the discretion space by the judges'heart syndrome and thus the conclusion is uncertain. The legislation on relevant regulations in china are not perfect This paper consists four parts. Presumption of fact are applied confusedly in judicial practices and thus its value are difficult to realize. This paper will take peng case as the breakthrough point. On the basis of the related theory and combining related legislations in foreign countries, the paper analyzes the main problems of the fact presumption so as to improve our legislations and judicial apllications on presumption facts and take them for references.The paper are consisted of four parts:The first part introduces the Pengyu case simply and then combined with the judgment of Pengyu case puts forwards some problems in fact presumption. Namely, (1) When the judges draw on discretion to apply presumption of fact to cases, might there be some randomnesses alternated with?(2) The judge blindly excluded stumbles and slips, and "focuses on analyzing the situation knocked by external force," which may be unsuitable? (3) The judge's rules of thumb that are used in applying presumption of fact to cases are the foundation of the presumption, then how to guarantee the height of the daily life experience probability?Part two:the value of the presumption in civil proceedings. First, it is important to define the meaning of presumption implied in fact, compare with the legal presumption, presumption of fact and anscheinsbeweis. Secondly, we also analyze the theoretical basis of presumption of fact. Finally, it is nessary to introduce the function and value of presumption of fact.Part three:the comparison of the presumption.Theories and the presumption of legislative case in representative countries of the two legal systems are introduced:English-American law systems focusing on research on proof responsibility, the continental law system of Germany studying on anscheinsbeweis, the French civil code of facts which legalize presumption and Japan's roughly theoretical study of the presumption.Part four:the assumption of perfecting presumption of fact in civil lawsuit in our country. First the paper analyzes the facts of civil litigation and judicial status of the presumption and then focus on the problems of the case of Peng Yu presumption and analyze it in detail. Finally,the paper makes discussions from the angle of legislation to explicit the position,apllied condition and the protection of related benefits, transfer the judical concepts and strenghen the guidance of cases as well as ascend the judges'quality from the judicial angle, from the related systems puts forwad some improving suggestions in collegial system, openness and appeal system.