The Analysis Of Logical Structure And Judicial Application Of Civil Presumption

For a long time,people's understanding of the presumption has been in a state of chaos,different scholars have different opinions,which leads to a lot of controversy.Most of the scholars do research of civil presumption from the perspective of evidence law,which has its limitations.Civil presumption has a different logical structure from complete demonstration.In practical,civil presumption plays its role in the field of litigation,it has impact on judge's mental impressions.So the study of civil presumption should from the perspective of the logical proof of litigation argument.From the perspective of legal logic to analyze the nature of civil presumption,it is possible to fundamentally understand the theory of presumption and how it should be applied.The content of this paper is divided into five parts:The first part mainly defines the concept of presumption by introducing the definition of the presumption in Anglo-American legal system and Continental legal system.In Anglo-American legal system,academic circles tend to define presumptions the process of judge infers the unknown facts(presumed facts)in accordance with the known facts(basic facts).But the disadvantage of this definition is that it does not fundamentally explain the nature of the process between the two facts;the civil law scholars mainly use classification to understand the meaning of presumption.However,the definition of presumption by classification does not reveal the conception of presumption.By comparing presumption to similar concept,this part analyzes the connotation of presumption.As for presumption is using by judges to ascertain legal facts,this thesis defines the nature of the presumption as the method of litigant argumentation of judge's judgment in judicial practice.The second part analyzes the reason why judges apply civil presumption in litigations.These reasons can be summarized to three points,the first is the ambiguity of the facts,constraint to human cognition,judges can't find all objective facts,the judges will be subject to trial experience.The second reason is the shortages of evidence.Whether in criminal cases or civil cases,the facts of the case is difficult to identify mainly because of the lack of evidences.Third,the requirement of litigation disputes must be solved.Dispute resolution requires the judge not to refuse to judgment referee on the grounds that the facts can't be found.The three different reasons caused the appearance of two types of civil presumptions.The third part expounds the logical basis of presumption in civil litigation.Civil presumption can be divided into the cognitive presumption and the practical presumption.The logical rationality of the cognitive presumption is derived from the cognitive level,and the practical presumption comes from the legislator The cognitive presumption has a complete logical structure,including the formal requirements of the internal certification--the logical structure of plausible argument and the logical rationality of the external certification--the normal connection between the basic facts and the presumed facts.The practical presumption is the legal arrangement of the legislator in order to balance the unfairness,to resolve the litigation disputes and to protect certain interests of certain groups.This part,also elaborated the non-formal logical characteristic of civil presumption,that is,plausibility,non-monotonicity and defeasibility.The fourth part analyzes the application and evaluation of two kinds of civil presumption.First,it shows that the logical structure of burden of proof is a kind of presumption which has a default premise,and its rationality comes from the requirement of self-cognitive logic rule and claim responsibility.The second is the analysis of the impact of civil presumption on the burden of proof.By analyzing the influence of cognitive presumption and practical presumption on the burden of proof,it comes to a conclusion: the cognitive presumption acting on judicial practice will only transfer the burden of providing proof,the practical presumption lead to the inversion of the burden of proof only when presumption fact is the only issue fact of the litigation,otherwise the practical presumption can only transfer the burden of providing proof.On this basis,the criteria of certification are also different.The fifth part analyzes the judicial practice of civil presumption.The judicial application of civil presumption needs to meet two conditions: first,the application should be necessary,otherwise it will lead to the consequences of abuse of discretion,second,the premise must be proved because the civil presumption is directly linked to the facts by probability and logic.If the facts can't be proved,the presumption shouldn't be applied.As for how to refute civil presumption,there are three ways in judicial practice for cognitive presumption.The first method is to refute the basic fact,which included two main ways,one is to prove the opposite fact of basic fact,the second is to prove the basic fact is rebuttal.The second method is to refute presumed fact.If you choose to prove the opposite fact,you must achieve a high degree of proof of the standard,and if you choose the other method,you only need to meet the standard of preponderance of probability.In addition to the previous two refutation paths,there is a third way to achieve the abolition and subversion of civil presumption by proving the exception of premise of civil presumption,thus preventing the judges from applying certain presumption in the process of litigation.However,only the first way is applicable for practical presumption due to its logical characteristic.