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Reduce Modern Litigation The Burden Of Proof

Posted on:2013-07-10Degree:MasterType:Thesis
Country:ChinaCandidate:T YuFull Text:PDF
GTID:2256330395488177Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The reform of China’s civil trial of the1980s and1990s, continueto strengthen the parties’ burden of proof, and to develop a seriesof laws to reflect this spirit. What, then, according to that theoryof liability value a requirement, the referee are not the relief ofthe judges, nor is the refuge of the difficult cases are. The onlyface difficulties in the process of law apply to supplement. It doesnot take into account the evidence biased in the situation in theframework of the litigation arising from the unequal status ofparties to litigation. Then according to the burden of proofallocation theory, will have the burden of proof to the party becausethey can not obtain evidence, which led to the case lost adverse andinequitable consequences. Especially a large number of burst lineproceedings, such proceedings found a very strong public good color,according to traditional litigation, the burden of proof theory totrial, the evidence presented in court, it is obvious limited, andis one-sided, which questioned the legitimacy of a judgment of theevidence is. If you solve the problem in modern litigation evidenceof partial, makes the traditional burden of proof theory to analyze,reflect and put forward the Solution.Development in the existing law and litigation law doctrine inorder to avoid the problems of the traditional judgment in accordancewith the burden of proof, some as much as possible to avoid casesof the solution through the application of the traditional model of the referee. Traditional thinking on this road, in the case of theunequal status between the parties to litigation, just to remedy thesituation, in order to remedy. Doctrine but also towards the mostof this how to properly post adjustment to put forward their owninsights, including proof of the areas of responsibility and freeevaluation of evidence framework in two ways: to prove that the areaof distribution of responsibilities, including the use of the burdenof proof upside down, the legal presumption. Supreme Court "on anumber of provisions of the Civil Evidence" is used to convert theburden of proof."Tort Liability Act" to develop new opportunitiesfor legislators to specifications examine the existing burden ofproof and improve."Tort Liability Act to increase the number ofinverted the burden of proof requirements, but also many areas ofthe burden of proof specification there are omissions and missing;respectively, within the framework of free evaluation of evidenceto the table to see proof that impede and prove lower degree manner.But we can see that for a large number of modern litigation isconcerned, our response to the difficulties in the way of the partiesthe burden of proof not only over a single, and the scope ofapplication is very limited. The current legislative provisions areflawed, many of the provisions or a mere formality, or is still blank,the urgent need to improve.Traditional ideas, I think the party can go further, the aboveproblems are institutional means of evidence collection is not complete due to proceed from the above source of the problem, themeans to enrich the collection of evidence, then the burden of proofwill be able tothe full implementation of the subjective burden ofproof, and thus a large number to avoid the legal effect of thedecisions of the Court of injustice. Even to the author point of view,we can broaden our horizon to seek institutional support outside ofthe theoretical framework of the burden of proof: First, modernlitigation to ask the victim to bear the strict idea of responsibility,may be victims of a large area of the interests can not be effectivelyprotected situation, so it can consider easing the plaintiff’s claimliability of such a system conceived; in accordance with therequirements of the traditional debate on the doctrine of civillitigation should be followed for a party advocating the other sideto deny and then further evidence to investigate this path. For modernlitigation, whether creative mode of litigation to establish alitigation began in the investigation of evidence? That litigationis not by the prosecution, but first the parties, evidence collectionand investigation. First conducted the survey of evidence, there aretwo ways for reference: the establishment of an independent evidenceof the investigation procedures, the reference accident processingmode to attract the participation of specialized appraiser; or forensic procedures can be considered to set the way first...
Keywords/Search Tags:Reduce the burden of proof, Tort Liability Act, evidence collection
PDF Full Text Request
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