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On The Proof Of Negative Fact In Civil Procedure

Posted on:2017-04-23Degree:MasterType:Thesis
Country:ChinaCandidate:H WuFull Text:PDF
GTID:2296330482457689Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The proof of negative facts is a difficult problem in the proof activities in civil action, which mainly reflected the difficulty in four aspects, namely the definition of negative facts, the necessity and significance of negative facts proving, the provability and methods of the negative facts proving and the burden of proof of negative facts. The settlement of the problem mentioned-above is not only in relate to the theoretical construction of negative facts proving, but also closely related to courts and the parties to respond to negative facts. There is no agreement throughout the response to the negative facts in the theoretical and judicial circles. In view of this, it is necessary to analyze and to research on these issues to achieve carding related theory, at the same time offering advices to the judicial practice.As for the concept of negative facts, integrating theory circle and judicial circle’s point of view, with the methods of comparative analysis and empirical research, the negative facts should be defined as two components, namely descriptive and evaluative negative facts, the former refers to things which did not happen or does not exist, the latter refers to the facts that do not meet the legal evaluation. The relationship between negative facts and its surroundings concepts should be: logically cross relationship between negative facts and negative elements, facts expressed in a negative way, probable causality relationship between negative facts and negative confirmation suits, the relationship between negative facts and advocated negative facts is the relationship of factum probandum and advocated facts.As for the necessity and significance of the negative facts’ proving, through text analysis of existing laws and analysis of judicial practice cases we know that: there is “rigid” necessity for the negative facts’ proving due to the widespread of negative elements and the objective burden of proof’s allocation rules for the negative facts. Because of the particular circumstances in the judicial practice, proof of negative facts also have the “soften” necessity, these particular circumstances are reflected in such specific: when one party claims to refute the other’s positive facts, it is difficult to account that the refute party has no need to bear the burden of proof; when one party want to achieve his or her rights and interests or get rid of the litigation exhaustion as soon as possible, he or she would like to take the initiative to choose to prove negative facts. As for the significance of the negative facts’ proving, in the aspect of substantive law, legislators can take advantage of the difficulties from the proof of negative facts to achieve legislative intent; in the aspect of the procedural law, the burden of proof’s allocation rules will take facility and justice into considerations, in addition, it will also help enhance the party’s consciousness to preserve evidence and the conscientious to control the negative externality of his or her behavior.As for the possibilities and methods of negative facts’ proving, through the comparative analysis of related theory at home and abroad, supplemented by case analysis, it is not difficult to find that the proof of negative facts is a provable. The methods of negative facts’ proving varies from the type of negative facts: the descriptive negative facts can be proved directly or indirectly, the former ones are mainly in virtue of EVR, DNA technology and authoritative databases; the latter ones are mainly in virtue of der progressive beweis, der regressive beweis, der apagogische beweis etc. Evaluative negative facts can only be proved indirectly via specific facts group because these ones are not objective facts when as ultimate facts.The burden of proof of negative facts should be analyzed from two aspects, one is the allocation of objective burden of proof, and the other is relief of subjective burden of proof. About the allocation of the negative facts’ objective burden of proof, through the historical and comparative analysis in theories and the text and case analysis in practices, we come to know that in theories we should allocate the negative facts’ objective burden of proof applying the revised Die Normentheorie first, the “theory of negative facts” second; in legislation, we should applying single rules when there are singe rules; when there are no single rules, we should applying Article 91 of Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China(hereafter referred to as Interpretation of Civil Procedure Law); when there is no rules, we should applying Article 7 of Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures(hereafter referred to as Provisions on Evidence in Civil Procedures), namely taking equity principle, Honesty-Credit Principle and suppression of evidence, etc. into consideration comprehensively. The differences of allocation of the negative facts’ objective burden of proof in the legislation and theories lie in the different degree of discretion when the court allocate objective burden of proof according to the difficulties among proving negative facts. As for the cause of relief of subjective burden of proof, it lies in the objective difficulties among the proving of negative facts upon most occasions due to the tracelessness and openness of negative facts. On that account, basing on substantial justice in civil lawsuit, the parties equality, Honesty-Credit Principle and litigation efficiency in civil procedure, it’s necessary to deal with the difficulties mentioned-above via presumption of fact theory, Prima Facie Bewies theory, lowering the standards of proof, cooperation obligations to provide evidence and Substantiierungsplicht.
Keywords/Search Tags:negative facts, provability, methods of proving the allocation of objective burden of proof, the relief of subjective burden of proof
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