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On The Assignment Of Burden Of Proof In Civil Procedure

Posted on:2018-10-29Degree:MasterType:Thesis
Country:ChinaCandidate:K LiFull Text:PDF
Abstract/Summary:PDF Full Text Request
The burden of proof in civil procedure is usually known as "the backbone of civil litigation”.German scholar Rosenberg thought that the allocation of the burden of proof was through the analysis of the legal norms in the logical structure of the entity and the judge had no rights to distribute it.China is a statute law country.As the Legislation has a lag,the new type cases make it difficult for judges to assign the burden of proof.Finally it leads the result that it's unfair to distribute the burden of proof strictly according to the classification of legal requirement.The civil law countries normally give priority to the legal elements of classification and accept interest measure said to be second for the stability and expectation of the law.Generally judges distribute the burden of proof on some special cases according to the principle of fairness,honesty combined with the factors such as the proof ability is allowed.Article 91 of the newly promulgated of?The supreme people's court about applicable of < the civil procedure law of the People's Republic of China >?has explained the rule of the burden of proof according to the theory of the classification of legal requirement.This article is on the base of basic theory of the civil law countries and steps further on the analysis of the burden of the proof,the right of discretion for judges on the burden of proof and the use of it.In the end,this article also try to prospect a preliminary solution.
Keywords/Search Tags:Civil Action, Evidence System, The burden of Proof, The Right of Discretion
PDF Full Text Request
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