Study On Indirect Counterevidence

Studies of indirect counterevidence controversy focuses on the necessity of its existence and relationship with the burden of proof. In this paper, I will define the nature and the applicable scope of the indirect counterevidence on the basis of the concept and the controversies of scholars from various countries,so as to provide theoretical basis to solve problems in practice.The German scholar Rosenberg thought the party should bear the objective burden of proof of the indirect counterevidence facts.However,according to the theory of classification of legal requirement by Rosenberg, the objective burden of proof is fixed by the legislation,which always belongs to one party, and not be transferred to the other party. Therefore the indirect counterevidence party do not need to bear the objective burden of proof of the indirect counterevidence facts.However, indirect counterevidence requires the party to achieve a high degree of proof which close to direct evidence in the high probability of proof.So in judicial practice,we can adopt the indirect counterevidence for the causal relationship of the environmental tort which is difficult to prove. In general case,the indirect counterevidence is same to the indirect evidence. In addition,the indirect counterevidence is nothing to do with the burden of proof. It is according to the rule of thumb which judge the strength of probability from indirect facts to the main facts,and make the judge form the free evaluation of evidence. Therefore,the indirect counterevidence is a way of the fact,which provide a possibility for the party's proof.The party would obtain favorable ruling by the indirect counterevidence.Under normal circumstances,the presumption is divided into presumption of law and presumption of fact. Presumption of law is a law of the burden proof,which involves the responsibility and the allocation of the burden of proof,so it cannot be used for the indirect counterevidence.The presumption of fact is a kind of indirect proof, because the indirect counterevidence has the same logical with presumption of fact. The indirect counterevidence can be used for the high degree of probability of prima facie evidence.It can also be used for the normal presumption of fact.