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The Proving Of The Ultimate Facts In Pseudo Bank Card Claims

Posted on:2016-11-16Degree:MasterType:Thesis
Country:ChinaCandidate:C XuFull Text:PDF
GTID:2296330461959094Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
There are proving difficulties of the ultimate facts in the civil litigation for damages which caused by the using of the forged bank card. In the existing theoretical research, most scholars study the relationships between the parties in this dispute from the angle of substantive law or study the distribution for burden of proof only with he angle of the procedural law, rarely study it from the combination of substantive law and procedure law and there exist controversy in their research.In this paper, by means of empirical analysis and theoretical analysis, on the base of clarifing the essential reason of prove dilemma in pseudo bank card claims, determining the burden prove distribution rule of the ultimate facts,with the help of the ultimate facts as an analysis tool, elements of the parties’ right of claim and defenses have been analysed and the methods to distribute the burden of proof have been make sure. At last, this paper tries to solve the proving difficulty in this dispute.The body of this article includes 40000 words and is divided into five parts:Part One: Putting forwards problems. Proving is the core of the lawsuit activities, disagreements in the proving will directly affect the consistency of the judgment. In the pseudo bank card claim, the existence of the pseudo bank card and the reason why the keywords had been revealed are the focus of controversy in this suit. Meanwhile, these two facts are hard to be proved, for this reason, the distribution of burden of proof in litigation result more play a decisive role. But both in the judicial practice and theoretical research, disagreements exist and the theoretical research hasn’t responded how to solve the difficulties in proving certain ultimate facts.Part Two: The reason for the disagreements in both judicial practice and theoretical research. There are three main points: first, the distribution of burden of proof rules do not unified;second, there is a lack of substantive law which directly stipulate such dispute; third, the value orientation of dealing with such disputes are not all the same. They have different choices in the principles of tilted protection of cardholder and the principles of maintaining the normal trading orderPart Three: The theory preparation for the proving in the pseudo bank card claims. Proving in this claims include tow issue questions: one is how to distribute the burden of proof, another one is how to solve the problems in providing evidences.Challenge to TheNorm Theory focus on the difficulties in proving for the parties who will bear the burden of proof which will cause unfairness. But the difficulties or the unfairness shold be solved by the burden of proof mitigation system, while should be solved by the using of the burden of proof mitigation system. Based on the research of scholars on the norms that deeply and perfect, the burden of proof mitigation system has been a part of The modified Norm Theory and gives a way to solve the proving difficulties in these claims.Part four: The distribution of the burden of proof for ultimate facts. Plaintiff bear the burden of proof for these ultimate facts as follow: the bank’s default behavior, the consequences of damage and the relationship between the first two. Defendant bear the burden of proof for these ultimate facts as follow: cardholders’ breach of collateral obligation and the subjective fault in this behavior.Part five: Methods to proving certain ultimate facts in pseudo bank card dispute. Evidence bias exists in this dispute, one way is to enhance the ability of the parties to provide evidence, another way is that the sanctions for the obstruction of evidence can be used. Indirect evidence should be used for some negative facts. As for the reason of the leakage of the password or the messages of the cards, the bank can prove the facts with the way to rule out the possibility of the bank disclosing the password, so that, the possibility of the cardholder disclosing the password or the cards’ messages will be much higher.
Keywords/Search Tags:the Ultimate Facts, the Distribution for Burden of Proof, The Norm Theory, the Burden of Proof Mitigation System, Pseudo Bank Card Claims
PDF Full Text Request
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