The Theoretical And Empirical Study On The Preponderance Of Evidence

In the civil trial process, it is not practical to blindly seek the true form for restoring thefacts because of all kinds of subjective and objective factors: not only affects the efficiency oflawsuit, and may also lead to the dispute keeping upgrade, so that it is difficult to safeguardthe legal rights of the parties. Therefore, the voice that a new standard ofproof—preponderance of evidence which could solve the problem is requested to establish ishigher and higher.The preponderance of evidence, in the fields of civil lawsuits, is that both parties putforward their assertions respectively with enough evidence, after completing the burden ofproof, the judge can hold the assertions of the party whose probative force of the evidence isstronger and claim that the party is the winner based on the judgment to those evidences in thecivil case. The preponderance of evidence reflected the proving requirement of “legalfactuality” and it is the standard of proof in the lowest limit in the process of applying to thecivil cases. Also, it is the preponderance of “quality” and “quantity”.The Supreme People’s Court Regulations on Several Issues in the Civil Action Evidencebroke through the regulations of the Law of Civil Procedure and established the provingstandard of "obvious preponderance", which made the judge no longer base on the “facts areclear, evidences are indeed and fully” to judge the authenticity of the facts, but on the actualcircumstances of the case to apply to preponderance of evidence in the civil trial process.Whether to build the preponderance of evidence in the civil evidence, there are"opposing" and "supporting" in academic circles. The author is in favor of the latter. Becauseof the standard’s vacancy in the Law of Civil Procedure and no roundly using by the judges,so it is should be perfected from the five aspects as below: to establish the proving standard—"objective factuality" given priority to, the "legal factuality" as auxiliary; legislating toconfirm preponderance of evidence; applying to preponderance of evidence by means ofcollegiate bench necessarily; to emphasize the reasonable of the reason in the judgment; toestablish the applicable standards in the form of the precedents.