Study On The Obligation Theory Of Making The Trouble Case Clear

The classical Principle of Debate is based on the belief that the parties are able tofully grasp the fact and evidence, therefore, the parties decide whether the issuesraised, the evidence raised by rational considerations, in order to achieve their ownbest interests, and the parties do not have the obligation to assist each other to gatherthe facts, the evidence, avoid themselves to fall into the disadvantaged situation.However, the evidence of modern litigation biased in the case of the emergence of theclassical Principle of Debate on the doctrine caused a shock, because only one partyexclusive facts and evidences in such cases, the premise of the classical Principle ofDebate on the doctrine of the default has not be established, and the correction isnecessary. In the new historical conditions, civil litigation is emerging new situationsand new problems, and thus brings a challenge to the existing legislative and thejudicial system and provides them the opportunity to change. Judicial practicerequires necessary restrictions on the ultra-liberal individualism, its main way is tolive up to prove the responsibility to set the corresponding matter case make clear theobligations of a party to achieve by including the rights in the collection of evidencemeans and capabilities relief, the maximum guarantee to both parties equally close tothe fairness and justice in the proceedings.This theory mainly opposes to the party who don’t bear the responsibility oftestimonial. It means that the party who do not bear the responsibility of testimonialbear the obligation of making the trouble case clear under certain conditions in civillaw. This theory plays a role in promoting the party to make the case conditions clear，makes evidence of data collection more fully，protects the parties have equal attackdefensive weapons in the proceedings， improves the fairness and convincing of theoutcome of the trial. Thus，this theory has great significance. However，Chinesescholars often just talk or explain the significance of finding the facts of the case，finding the path,，and accountability from the point of view of the party who bears theburden of proof. Few people concerned the responsibility about finding facts of theparty who don’t bear the responsibility of testimonial. The author believes that theparty who don’t bear the responsibility of testimonial should also bear certainobligations for finding the real cases because he had experienced the occurrence of the case，if he don’t participate in the case hearing，the Judge finds out the facts of thecase is almost impossible，so litigation to protect the legal rights and interests of theparties does not arise. In order to find the real condition，to promote litigation，tomaintain the rights of both sides close to equal evidence，we should require the partiesto bear the obligations of making the case clear.This paper is about24000words consisting of the following three parts apart fromthe introduction.The first part is the summary of the obligation theory of making the trouble caseclear. It mainly analyzes the background，connotation，nature，function and legal basisof the theory.The second part mainly discusses the content of the theory on the basis of learningthe relevant law provisions and results of theoretical studies from the civil law ofGermany and Taiwan. I gradually analysis precondition，exceptions to the obligation，Interest Measurement principle、sanction measure from the generalization and theexception of the type. I conduct a more comprehensive introduction about theobligation.The third part mainly demonstrates necessity and feasibility studies on theintroduction of the system，and put forward ideas and suggestions about China’sintroduction of the obligation. Firstly，I demonstrate the necessity on the introductionof the system from the requirements of China’s judicial reform，requirements of thedevelopment of civil litigation theory，convergence of national legal requirements inthe legal context of globalization. Secondly，I demonstrate the feasibility on theintroduction of the system from recognition of the judge’s discretion， theimperfections of the existing relevant laws and regulations，concept of justice for thepeople. Finally，I put forward ideas and suggestions about China’s introduction of theobligation，and investigate the type selection，precondition，scope of application, legaleffect and supporting measures combining with our own situation.