Theory Of Indirect Evidence To The Contrary

Rosen Baker founded the burden of proof “Standard”, and to supplement itsspecification he created another concept that was indirect evidence to the contrary. Intheory, its criticism has never stopped. This is mainly because that in order to fit theconcept, there generates a new theory. This theoryˊs most important target ofcriticism is the relationship of indirect evidence to the contrary and burden of proof.Now in Germany, the critical voice is gradually drowned by other theoretical issues,while in Japan it has caused an unprecedented debate. Of course, this is only one partof the debate about the burden of proof among Japanese scholars. But this part ofdebate is fierce, and you can imagine the impact of the theoretical difficulties causedby the indirect evidence to the contrary in the academic community. Chinese scholarson this issue mainly learn from the Japanese research results. Especially in Taiwan,they discuss the problem of indirect evidence to the contrary specially. It can be seenfrom what I mentioned above, it is valuable to research and necessary to discuss onthe theory of indirect evidence to the contrary.I intended to explain the concept of indirect evidence to the contrary and theorybehind it from the following six aspects.Part I: In this section, I will sort out the concept of indirect evidence to thecontrary in Germany、Japan and China. Then I will find out the differences betweenthem by comparison, and put forward the core that my article will discuss.Part II: In this section, I will describe the object of certificate and types ofindirect evidence to the contrary.Part III: Here I will analyze Rosen Bakerˊs theory of proof burden, especiallyhis “not use standard law” theory and principle of shared responsibility. RosenBakerˊs theory of proof burden is the base of the theory of indirect evidence to thecontrary. So only after understand the “Standard” can we also understand the theoryof indirect evidence to the contrary.Part IV: The essence of indirect evidence to the contrary theory. In this section, Iwill analyze some examples in order to draw forth the essence of indirect evidence tothe contrary. These examples are “‘malicious concealment and error’ in liability of warranty against defect to subject matter”、“‘illegal negation reason’ in tort”、“‘with orwithout a legitimate reason’ in unjust enrichment request right”、“‘violate selfˊsmeaning’ and ‘with or without obligation’ in claim for management withoutobligation”. In addition, it also contains “quasi-consume and lending problem” in thedebate between Japanese Kurata Zhou and Ishida Rang.Part V: In this section, I will focus on the relationship of indirect evidence to thecontrary an presumption of fact, and discuss the different points between the Japaneseindirect evidence to the contrary and that of Rosen Baker. Besides, I will explain itstheory formation.Part VI: Conclusion.