Theoretical Dispute And Perfect The System Of Presumption In Civil Procedure

The presumption rule of civil procedure is a rule that the judge presumes the truth of the facts on the basis of the rule of law or the rule of experience in the trial of civil action.The nature of the presumption of civil action in our country has four viewpoints: the rule of exemption,the rule of onus probandi,the rule of evidence and the rule to ease the burden of proof.These four viewpoints are unilateral and they weaken the application effect in the presumption rule of civil procedure.There is a great controversy in the reasonableness of the existence of the presumption rule of civil litigation in China's theoretical and practical circles.The theoretical circles hold affirmation of the existence of the presumption rule in the civil procedure.There are two views in the practical circles rule in civil litigation: affirmative and negative.Based on the elaboration about dispute over the theory the presumption of civil litigation,the author analyses the current situation of legislation and judicature in civil presumption rules of substantive law and procedural law,and finds out the existing problems in the legislative and judicial aspects in the rules of civil procedure presumption in our country,and then put forward some improving suggestions according to the existing problems in the rules of civil litigation presumption in the final part of the article.In order to apply civil litigation presumption in our country's judicial practice much better,the legal language should be clarified in the substantive law by legislators to ensure the uniformity and appropriateness of the legislation.The program should be set up by Legislators to embody the value of procedural justice in procedural law,and it should specify the initiator program and the standard of proof adaptive to the presumption rules,the duty of judge,the right to refute and the evidence standard of refutation,appeal as a relief way to parties,the concept of open heart is carried out by judge.In China's judicial practice,a guidance case library adaptive to the the presumption rule of civil procedure pertinenly should be established to train judges in different categories,and change the previous concept of the judges in application of the presumption rules.