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Studies On The Thery Of Civil Prima Facie Beweis

Posted on:2017-11-12Degree:MasterType:Thesis
Country:ChinaCandidate:J Y ChenFull Text:PDF
GTID:2336330512957663Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Civil Prima Facie Beweis refers to the fact that judges directly presume negligence or causality of "typischer Gsechehemrablauf" by certain objective facts and according to the rule of general life experience rule, that is, there is no need to describe the details of specific events in the presumption process rather than directly presuming facts to be determined based on objective situation. In our country, there is great similarity between prima Facie Beweis and presumption of fact, but using probability and scope of empirical rule as the main distinguishing marks between them only have the abstract theoretical significance, because we have to admit that in concrete case, it is difficult to accurately determine the probability level based on empirical rule, so does to directly apply to its classification according to the probability level of empirical rule. In this paper, the author tries to define this distinction on the basis of the theory, more importantly, to explore the specific application of the difference between the two from the judicial practice. The author believes that there are two patterns in the practice of mature presumption of fact:civil Prima Facie Beweis and Indizienbeweis, that is, in practice there is coincidence between the operating mode of Prima Facie Beweis and presumption of fact, namely, presumption of fact includes civil Prima Facie Beweis in practice. But Prima Facie Beweis mode in presumption of fact doesn't equal to Prima Facie Beweis in that Prima Facie Beweis solves the negligence and causality of facts to be determined while presumption of facts solves the determination of the whole case. Due to the fact that presumption system in China is still imperfect and there is no relevant supporting measures, so the practical effect is chaotic and in function we are far behind the mature Prima Facie Beweis system. Therefore, I think in the identification of negligence and causality, our country can introduce Prima Facie Beweis system that is consistent with our system so as to alleviate the current predicament situation of factual presumption system. In the judicial background of same case follows same sentence in our country, Prima Facie Beweis provides a way to realize the unity of law application in China. In other countries, Prima Facie Beweis mainly realize its function by following legal precedent rule. Of course, constructing legal precedent system of Prima Facie Beweis in China is a complex and lengthy process. At present, the way of using gradually developed case guidance system to replace legal precedent rule in other countries is more in line with our country's actual situation, and it has great significance to better promote the localization process of Prima Facie Beweis in China.
Keywords/Search Tags:presumption of fact, Civil Prima Facie Beweis, rule of experience, typischer Gsechehemrablauf
PDF Full Text Request
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