On The Authenticity Of Our Civil Judicial Practice Unknown Cases Are Handled

From continued discussion of theory and practice about how to deal with the fact that the unknown authenticity of the elements, the writer finds that theoretical discussions are mainly in terms of theory, only a little attention to single-case about how to deal with the authenticity of the unknown fact in civil judge, and practitioners do not pay comprehensive attention about how to deal with the authenticity of the unknown fact in our civil judicial practice. For this reason, writer has combed the theory of the authenticity of unknown, and try to explore how to deal with the fact that the authenticity of the unknown elements on the basis of the cases of China’s judicial documents online when the authenticity of the fact is unknown in our judicial practice, in order to explore operative situation of the theory in our judicial practice.Text is divided into four parts, and the main contents are as follows:Part I: General theory about unknown authenticity. Unknown authenticity is that in the process of litigation, although the parties use all necessary means of attack and defense before the end of the proceedings to prove true of the requirement facts or key elements, the judge is still not in accordance with the standard of proof required to achieve the inner conviction that whether the facts are true or false and form the special mental state during judge’s mental impression. How to deal with the cases of unknown authenticity? Theory and practice have different ideas. Theorists support under the authenticity of unknown circumstances, applicable rules of objective burden of proof is the best way. The attitude of practitioners is prudent, and they support when various ways don’t work, the rules of objective burden of proof can be used and the judge to have a lot of discretion, and conciliation is some extent favored.Part III: Analysis of the way authenticity of unknown cases are handled. The mediation to deal with the cases of unknown authenticity is failure, and there are many reasons why it is still used. With the change of judicial policy, the withdrawal of the suit rate by mediation becomes the standard of excellent. Besides, mediation can improve efficiency, cancel law suit, and prevent the Prevent enforcement difficulty. So there appears pursuing a "zero judgment" tendencies. Writer thinks we should hold the principle that when it can be mediated, it should be mediated; when it can be judged, it should be judged.” The purpose of mental impression is not consistent with the purpose of the parties in the proceedings, and the most important thing is it is almost impossible to make the parties get the real judge in this manner. So using these methods to overcome the fact that the authenticity of the unknown elements are not achieved. For some cases, there is so much difficulty to prove the presence because the evidence of elements can not be obtained. When we still take a high degree of probability standard of proof, it is unjust to the infringed party. So we can lower standard of proof, so that the judge can overcome elements of the authenticity of unknown facts in some cases, and find a existing causal relationship and judge the infringer to compensate. But in order to pursue law predictability, it is not universally applicable. When the court finds that the authenticity of the elements of the case are unclear, the court judging what is not prove as "false" is up to the judicial practice. Article 2.2 provides "rules of evidence" is not only for the situation that the authenticity is unknown, but equal for the situation that judging the fact as "false" in the process of judge’s mental impression. we can see that when the facts reach the standard of proof,the facts is "true", and when it is failed to meet the standard of proof, the facts is "false".And the party who can not prove the alleged facts as "true’ will lose a lawsuit. This fits with the article 108 of the recent "Civil Law" judicial interpretation. There are some problems when using objective burden of proof to deal with he authenticity of the unknown: when we begin to identify the authenticity of the unknown is not clear, and then the error will occur; sometimes the court is not clear which party bears objective burden; subjective burden of proof and objective proof may be confused in the trial; because the standard of proof is not unified, there has been different standards to identify unknown authenticity, resulting in different of the identification of unknown authenticity vary wide. Of course, some of the courts can use the right rules to deal with the authenticity of unknown and these courts are in Zhejiang, because Zhejiang Provincial High Court the introduces appropriate regulations.Part IV: Judicial practice, the authenticity of unknown cases handled recommendation. In the course of the trial judge, the first to grasp the situation appears good authenticity is unknown, for some cases in terms of the evidence by the judge can investigate the authenticity of an unknown problem solving, and for the rational use of the presumption in some cases can be resolved the way the authenticity of the problem is unknown; these are the return of a judge obligations. Secondly, when really necessary to alleviate the burden of proof in cases when the parties, the judge must use appropriate discretion in the hands. Specifically, the proportion of evidence is in accordance with methods and ways to reduce the burden of proof standard, and the rational use of "rules of evidence" Article contents referee; and finally, in the above methods can not overcome the fact that when the element of authenticity is unknown, the correct application of the rules of objective burden of proof this is the "last straw." Our objective is allocated the burden of the new Civil Procedure Law explanation "Article 91 regulations.