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A Study On The Prima Facie Bewies In China

Posted on:2018-08-16Degree:MasterType:Thesis
Country:ChinaCandidate:Y ZhangFull Text:PDF
GTID:2416330515498469Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In tort lawsuit,the direct evidence suggests that cannot,subjective fault proves difficult,the burden of proof between the parties unfair distribution,so that many cases of the outcome of the verdict difficult to convince both parties.Nowadays,the judicial practice of our country has a verdict,which is in the case of the lack of causality evidence,through the presumption of litigation to recognize the existence of the causal relationship in the specific case,and make the verdict.However,in the course of judgment,the court only halted the level of burden of proof in such litigation,so that the theoretical basis of judgment was insufficient.The evidence system from Germany is the system that overcomes the obstacle of causation and guarantees the equality of litigation weapons.In addition,the Anglo-American law system also has similar systems,namely "self-evident" rules,Japan's "rough presumption" rules,and German see the system of proof to build a similar presumption means.Every time the case falls into a proven predicament,the court's use of the table proves to be a convincing verdict.It is shown that in particular cases the presumption of fact is based on the rule of thumb of higher probability.The judicial interpretation of our country has been able to find out the institutional roots of the evidence,and in the judicial practice,many judgments have already applied the substantive form of proof system,but the theoretical basis is still insufficient to support the result of the judge's free heart.It is shown that the application of judicial practice in Germany,Japan and other countries has been fairly mature,so this paper will deeply analyse the concept,essence and legal consequence of the proof system of foreign table.Combining with the existing theory of evidence system in our country,it establishes its legal basis in litigation system,and improves the convergence of the indirect proof system in China.The first part is the introduction of the proof.The author expounds The concept,nature,value and legal consequence of the proof of the table,and concludes that the proof belongs to the category of proof appraisal,and its legal consequence is the transfer of specific burden of proof.The second part discusses the relationship between the apparent proof,the presumption of fact and the indirect proof.Firstly,the relationship between the proofs and the indirect proofs is analyzed,and the factual identification model of the coexistence of the indirect proof and the apparent proof is proposed.Secondly,the analysis of the relationship between the fact and indirect proof,on the one hand,the fact presumption and indirect proof is not fundamentally different,on the other hand because of the fact that the defects,the author proposes to use indirect proof system to substitute the presumption of fact.The third part,the foreign table see the relevant stipulation of the proof system.The author divides into two parts of Anglo-American law system and continental law system,and expounds briefly the system of the United States,Britain,Germany,Japan,and the similar function in lawsuit system.And put forward the advantages and disadvantages of national system,for our country to perfect the system of proof of the see to provide reference.The fourth part is the present situation and deficiency of the proof degree in our country.The author explains the present situation of the development of our country's form of proof system from the two aspects of legislation and judicature respectively.The author thinks that the proof system is stipulated in the Law of tort liability of the evidence stipulation in our country,the practice circles also have a large number of cases of use of the form of proof.And put forward four shortcomings,namely,the lack of evidence of the system legislation,the lack of empirical research,the absence of indirect proof of the system,the relevant theory is not mature.The fifth part is the perfection of the proof system in our civil litigation.In view of the shortcomings before,the author proposes the legislative and judicial improvement measures.Legislation,perfecting the method of selecting the rules of experience,clearly stipulating the parties to the contrary to the proof of responsibility and the standards to be achieved;The judicial aspect,the use of the guiding case system,accumulate a large number of cases,unify the referee scale,guarantee the other party's opportunity to refute,strengthen the role of trial,the content and results of the public judge's certificate in time.
Keywords/Search Tags:Prima facie bewies, Burden of proof, probability, Rule of experience, presumption of fact, indirect counterevidence
PDF Full Text Request
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