The Fact Presumption Problems In Evidence Law

Presumption is a judgment method which is practiced a lot in trial. Except few presumption were written in the law which was defined presumption of law; more presumption is based on the rule of thumb and presuming by judge with his or her logic system, those presumptions were defined as presumption of fact. Because the level of judges are uneven and the rules of thumb are not consistent, the practice of presumption of fact lack of stability. Also, how to practice of presumption of fact in trial and will it influences the burden of proof, are still needed to be discussed.This thesis is divided into four partsThe writer expounds the general theory of presumption of fact in the first chapter. After defining the presumption of fact, the writer analyzed the reason of the existence of presumption of fact. First analyzing from theory angle, why the presumption of fact could practice in trial, and then analyzing the value which presumption of fact brings to lawsuit.The second chapter describes the practice of presumption of fact in China. The relevant terms of presumption of fact in Chinese law is scarce, only found in judicial interpretation. With "Pengyu case"" for example, the writer analyzed the presumption of fact in the court verdict, and the result shows the lack of related laws lead to the loopholes in the practice of presumption of fact, there is no clear standards for presumption of fact.and no protection for the judge who is going to use presumption of fact in trial.The third chapter is about the presumption of fact in two law system. In Anglo-American law system, the burden of proof was divided into burden of production and persuasive burden. According to whether the persuasive burden will transfer to the other party because of the practice of presumption of fact, established two theory, one is Thayer’s "Bubble theory"’, which believe the practice of presumption of fact will not transfer the persuasive burden to the other party; the other theory is "persuasive burden transfer", which believe the practice of presumption of fact will transfer the persuasive burden to the other party. The former theory is in the lead during the legislation and judicial process. The civil law system most defines the presumption of fact in a general way, only few detail differences among those countries. In addition, the writer analyzed the jury system separately, because it is a very valuable system for the practice of presumption of fact. In the last chapter, the writer offered her simple advice. The writer believes the instability of the practice of presumption of fact is because of the instability of the rules of thumb. We should analyze individual people from his or her education background, family structure, religious belief, living area and so on different elements and send them into different database. When the presumption of fact is needed, we select people from the database which is the most similar to the actor in the case, and get a research result, if the result shows the rules of thumb is accurate enough for this specific case, the judge could according to the results presume the fact of the case. In this way. we can protect the judge from the risk of practice of presumption of fact and also make sure practice of presumption of fact in a stable standard.