On The Glaubhaftmachung Responsibility Of Civil Procedure In China

There are broad sense and narrow sense of the definition of the certification in the civil procedure. The general meaning of certification in our country usually refers to the narrow one. In fact, the broad sense also includes glaubhaftmachung. The meaning of glaubhaftmachung is: in the process of instant evidence investigation, taking the efficiency of a trial into consideration, the judge makes a general inference about the authenticity of some fact by lowering the standards of free evaluation of evidence. There is no in-depth study of the civil procedure law in China and study and rules on glaubhaftmachung is rare, which leads to a confusion between glaubhaftmachung and burden of proof in judicial practice and leads to a lack of guidance for dudiciaries. All of these bring a disadvantage of the assurance of any party’s rights, especially their procedural rights. Based on the reality of our country’s national condition, learning experience about glaubhaftmachung responsibility from other continental-law-system countries like Germany, combining the existing research results of some Chinese scholars studying on civil procedure law, this thesis makes a superficial discussion on the construction of glaubhaftmachung liability system in civil procedure. The thesis is divided into four parts:The first part is about the analysis of the present stage of glaubhaftmachung in our country. Firstly, it tells the definition and features of glaubhaftmachung responsibility, which is: in the process of instant evidence investigation, taking the efficiency of a trial into consideration, the judge makes a general inference about the authenticity of some fact by lowering the standards of free evaluation of evidence. Secondly, based on the situation of glaubhaftmachung responsibility in our country, it figures out the difficulties of the development of glaubhaftmachung responsibility and tries to find the reasons.The second part is about the scope of glaubhaftmachung responsibility. The application of glaubhaftmachung responsibility can be divided into two aspects. One of them is the applicant scope of the subject, which means who need to take the responsibility of glaubhaftmachung. The other one is the applicant scope of the object, which means which facts need to be explained by the party liable glaubhaftmachung. In terms of glaubhaftmachung subject, it includes parties, witnesses, persons who take part in the trial. All of these people need to take the responsibility of glaubhaftmachung. Besides, in terms of the object, whether to eliminate or keep all of the substantive and the procedural facts depends on the facts needed to be proved.The third part is about the rules of applicating the glaubhaftmachung responsibility. Fisrtly, it is about undertaking the glaubhaftmachungassume responsibility, which is about the distribution of glaubhaftmachungassume responsibility: guided by the "conducive to suit", it combines the principles of "who advocate, who proof" and "the judge discretion". Secondly, it is about the standard of glaubhaftmachung responsibility. In continental-law-system countries, the main standards are superior probability, make others believe and general inference. Finally, it introduces legal consequences of glaubhaftmachung responsibility: if one party fails to perform the glaubhaftmachung responsibility, what legal responsibility he needs to take and what legal remedy he can get.The fourth part gives suggestions on perfecting glaubhaftmachung responsibility of our country’s civil action. Firstly, in order to make people know more about glaubhaftmachung responsibility, it tells the distinction between the glaubhaftmachung and glaubhaftmachung responsibility. Secondly, because of the particularity of Chinese court’s investigation of authority and its some mix with the party’s glaubhaftmachung responsibility, it tries to make it clear about the relationship between the court and the party. Secondly, it is about problems between the standards of glaubhaftmachung and judge’s free evaluation of evidence. The modern free-prove-system has developed into a stage of being public, but glaubhaftmachung is a about a lower level of judge’s assurance on a certain fact. Therefore, in order to ascertain the facts of a case as well as not to influence the public trust of judges, how to balance these two things is an important part of this thesis.