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The Allocation Of The Burden Of Proof System Research Of Environmental Action

Posted on:2013-04-06Degree:MasterType:Thesis
Country:ChinaCandidate:F L GaoFull Text:PDF
GTID:2246330374465307Subject:Environment and Resources Protection Law
Abstract/Summary:PDF Full Text Request
The Roman law saies:"where the burden, where the lose." This is enough to explain the lawsuit is the importance of burden of proof, but from the longer term, dividing the ownership of the burden of proof fundamental purpose, is through litigation is how to the dangerous reasonable allocation, and prompted the fairness and justice to the realization of subject. In the environmental lawsuit, due to the environmental damage of the entirety, concealment, uncertainty, permanent and environmental disputes of the litigant information asymmetry, cause in the field of traditional litigation proof responsibility distribution rules have been unable to solve the new problems of modern litigation.Based on the definition of the entrance, this paper systematically explores the environmental litigation proof responsibility the basic principle of distribution and specific rules, in order to litigation legislation trend and environmental benefit to the judicial practice. Full text structure is as follows:In the introduction section, the author introduced the environmental litigation of burden of proof distribution system of the research status and significance, and puts forward the ideas and research methods. In the law within the framework of fairness and justice, how to our country environment judicial proof responsibility distribution system will be built, this is a main throughout the full text.The first part is environmental litigation proof responsibility allocation of the conceptual analysis. This paper first breakthrough at present scientific theory about the burden of proof "double meaning" the connotation of understanding, the author puts forward the burden of proof "quaternity" theoretical connotation, and on this basis to the meaning of the allocation of the burden of proof to define. Since then, in the environment based on the definition of litigation, clearly differentiated environment the type of litigation, trying to build up the theory the foundation of the building.The second part is the burden of proof distribution of the main theory analysis. This part of the mainly introduced the German legal requirement classification said, dangerous said, probability said, field belonging damage said, and the United States sure facts said, v. a responsibility said, must the fact said, interest measure said, as well as China’s SongShiJie professor, professor Chengang,professor LiHao, and professor Yezhiqiang of distribution theory. Through the comparative analysis, this paper argues that, our country should adopt the "by law is given priority to, the judicial discretion supplemented by" theory system.The third part is environmental litigation proof responsibility allocation of the basic principles. This paper analysised and summarized, the allocation of the burden of proof that environment action should include the basic principles of fair principle, the benefit is convenient principle, the principle of good faith and interests balance principle.The fourth part is environmental litigation proof responsibility allocation of the law. In order to pursue the stability of the value, should first by law for the standard to prove the allocation of responsibility. In the first part of the environment of the classification of the lawsuit type, based on this part emphasizes clarifying environment the civil action, the environmental administrative lawsuit and environmental criminal litigation of burden of proof distribution rules but and ought to distance, and the reconstruction and accordingly theory system arrangement made an attempt.The fifth part is environmental litigation proof responsibility allocation of the judicial discretion. In order to pursue the case of the value adequacy judicial proof responsibility should give the power of the judicial discretion to the judge.This part of the first discusses the theoretical basis of the judge’s judicial discretion, and from the starting conditions, the considering factors, the applicable procedures puts forward opinions.The closing part, the author points out the deficiencies and their expectations. In this paper, the environmental litigation of burden of proof distribution system research, it is just a kind of a rough and superficial understanding, especially for environmental action proof responsibility of the distribution law discusses, there may be a variety of deficiency and defects, I wish these problems can get everybody’s thinking.
Keywords/Search Tags:Environmental litigation, The allocation of the burden of proof, Basicprinciples, Requirement of law, Judicial discretion
PDF Full Text Request
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