Studies On The Theory Of Prima Facie Beweis

Factual presumption is an alternative way about fact-finding,and it plays an important role when the proof cannot work.However,with the deepening of the theoretical research and judicial practice,factual presumption has been debated and even doubted for a long time.In theory,factual presumption is inference essentially although it is named presumption,and there are essential differences between factual presumption and legal presumption,the latter is a real presumption.In practice,because of the dependence on the judge's discretion right,factual presumption has subjectivity and casualness to a certain extent.Therefore,we should abandon factual presumption's concept,and replace it with the prima facie beweis.As a proof rule,prima facie beweis can change the subject of proof,reduce parties' burden of proof,solve the difficulty of proof,and avoid the litigation deadlock.The application of prima facie beweis is based on typical occurrence and rule of thumb with the high degree of probability,so it can prevent judges from casualness and enhance the persuasiveness of court decision.From the perspective of probative effect,the prima facie beweis belongs to the category of evaluation of proof,and it neither redistribute the burden of proof nor reduce the standard of proof,it only transforms the liability to give evidence.So the opposing party just needs to produce counter evidence to negate the application of prima facie beweis.In the future,we should establish and perfect the rules of prima facie beweis.This article mainly includes the following four parts:The first part starts from the confusion of the presumption rules,and summarizes the performances and causes of the confusion.Then there is a conclusion that the concept of factual presumption should be abandoned.In order to comfirm this conclusion,the author analyzes the rules of factual presumption from the aspects of theory and practice,and finds some questions,for instance,the factual presumption is essentially inference instead of presumption,the judge makes different court decision in a similar case,and so on.The second part detailedly explains two opinions about whether to abandon the concept of factual presumption.The author agrees with the opinion about abandoning the concept,and thinks that it is a result of combined action of internal cause and external cause.Theoretical inheritance is another important cause.After abandoning the concept of factual presumption,the author chooses prima facie beweis as the alternative concept,and then explains this concept.The principle of res ipsa loquitur in Anglo-American law and the rule of general presumption in Japanese law are similar to the prima facie beweis.Furthermore,the prima facie beweis is a sign of the principle about free evaluation of the evidence.The third part explains the primary coverage of prima facie beweis by taking the German law and Chinese Taiwan's law as a reference.The primary coverage includes important conditions,application scope and functions.To be specific,the important conditions include fundamental fact,typical occurrence and rule of thumb;the application scope include confirming the existence of negligent act and causal relationship in tort cases;the functions include achieving the principle of equality,solving the difficulty of proof,increasing lawsuit efficiency,completing the typification of the rule of thumb,perfecting the substantive law,and so on.The fourth part deals with establishing and perfecting the prima facie beweis of our country in three aspects,principles of application,measures of safeguard and ways of legal remedy.Specifically speaking,the principles of application include applicating lastly,carefully and actively;the measures of safeguard mainly include perfecting case guiding system,strengthening the opening of judge's mental impressions,safeguarding opposing party's right to produce counter evidence,playing functions of the trial grade system and achieving judge professionalism;ways of legal remedy include appealing and applying for a retrial.