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On The Conversion Of Burden Of Proof

Posted on:2019-08-12Degree:MasterType:Thesis
Country:ChinaCandidate:L ZhangFull Text:PDF
GTID:2416330548452131Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Many countries and regions of civil law system have carried on the thorough research to "the conversion of the burden of proof",many Chinese mainland scholars equate "the conversion of the burden of proof" with "the transfer of the burden of proof" or "the inversion of the burden of proof",and few studies on it.It is theoretically necessary to clarify its conceptual differences.According to the traditional concept of the classification of legal elements,the party's burden of proof(objective)to the essential facts is set up by the legislator in advance of legislation,thus the burden of proof should not be arbitrarily converted between the parties.There are many factors for the conversion of the burden of proof,which is based on the existence of the general rules of the distribution of burden of proof(normative said),which is a relationship between principle and exception.As can be seen from most of the provisions and decisions that have been made publicly concerning the allocation of burden of proof,there has been considerable effort to continue to rationalize the burden of proof and to achieve the substantive justice of the case according to the type of case.However,in practice,endless,complex and diverse cases continue to appear,the existing norms of burden of proof still can not take into account the case,the distribution of responsibility in the rule is missing or unclear is still a problem,for the proof of the conversion of one of the types of proof liability contract is still controversial.Therefore,this article takes the comparative law as the beginning of observation,probes into the different opinions about the conversion of the burden of proof at home and abroad.Clarifying the difference between the conversion of burden of proof and the related concepts,demonstrating the legitimacy and type of the conversion of burden of proof,in order to construct the perfect theory of proof responsibility conversion which accords with our country's practice in theory,so as to provide a reference for perfecting.This text is divided into five parts: 40,000 words.Part I: Whether similar cases in judicial practice prove the different judgments of responsibility conversion.The part puts forward the thinking of the conversion of the burden of proof from two different cases of the different burden of proof in the case of the same type infringement patent dispute involving the non new product manufacturing the conversion of the burden of proof in accordance with what some scholars have said only inaccordance with the legal requirements of the conversion of the burden of proof? Or that a judge in a particular situation can be discretionary?Part II: The summary of the conversion of burden of proof.There is no unified definition of the burden of proof,comprehensive analysis and evaluation of Germany,Japan,China Taiwan,mainland China,scholars on the definition of burden of proof,and comparative proof of responsibility conversion and related concepts such as the transfer of burden of proof,the reversal of burden of proof,the reduction of burden of proof,proof of seeing,the presumption,to explore the connotation and extension of the conversion of burden of proof.The conversion of burden of proof should refer to the phenomenon of special changes in the distribution of the burden of proof in accordance with the provisions of law,the discretion of the judge and the parties ' special Agreement on the distribution of the burden of proof.It is not to be confused with the "transfer of burden of proof" or "inversion of the burden of proof",and the degree is more than the reduction of burden of proof.The proof seeing and the fact presumption do not result in the conversion of the burden of proof.Part III: The legitimacy of the conversion of the burden of proof.The theory of the burden of proof is not suitable for the development of the society,and the new theory of critical norms,such as "The Danger Field" and "Probability said",is always flawed,and cannot replace the norm as the general principle of the distribution of burden of proof.Therefore,it is the legislator or the practice in order to balance the value of fairness and justice came into being,is not a short-lived meaningless system products,researching its existence has important value.In the application of the system of burden of proof,what factors should be considered to make a reasonable conversion of the burden of proof,the academic and practical circles have different views,the German theoretical circle,the practice sector,as well as China's Taiwan region of the practice of the transfer of the burden of proof have their own standards.In practice,the principle of fairness and justice,the principle of honesty and credit,the distance of evidence,the protection of the interests of the weak,the probability and other factors should be considered carefully to apply the system of burden of proof,and more attention should be paid to how to argue in judgment.Part IV: The specific type of proof responsibility conversion.The conversion of burden of proof has the following types under the premise of the specification: the conversion of legal burden of proof(from the provisions of substantive law and procedural law),the conversion of liability for proof of responsibility(from the legality of the contract of proofliability agreed by the parties,the applicable field,the essence to explore the effect of the burden of proof liability contract conversion burden of proof),The conversion of the burden of proof of judge's discretion(from the perspective of our practice cases,the judge's discretion should be in a certain limit,in the absence of law,judicial interpretation,comprehensive integrity of the principle of credit,the evidence of the situation,the distance and other factors reasonable conversion).Part V: The concrete construction of the theory of proof responsibility conversion in our country.China does not have a perfect system for the system of proof responsibility conversion,in view of the fact that the theory of burden of proof is helpful to guarantee the litigant's procedural subject value and to make up for the deficiency of the norm and to safeguard the substantive fairness of the parties,therefore,considering the main types of the conversion of proof responsibility,the legal requirements for the conversion of burden of proof are proposed(four levels are applicable).Only in the absence of legal provisions,the presumption of legal presumption of the existence of the facts,there is no proof of responsibility,and no party agreed to the contract of proof,in accordance with the norms of the distribution of burden of proof will lead to a case of unfairness,the judge may be based on the case,in the extent of unfairness,dangerous areas,evidence near the most serious,It is prudent to adopt the method of burden of proof conversion.
Keywords/Search Tags:Conversion of Burden of Proof, Transfer of Burden of Proof, Inversion of Burden of Proof, Contract of Burden of Proof, Considerations
PDF Full Text Request
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