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Research On Distribution Of Proof Liability In Disputes Of Rroperty Infringement

Posted on:2020-06-18Degree:MasterType:Thesis
Country:ChinaCandidate:L Z ShenFull Text:PDF
GTID:2416330578484025Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
With the popularity of the network,the scale of network users in China is huge,and the growth rate is very fast.New types of virtual property are constantly emerging,such as bitcoin,Ethernet coin,and so on.Virtual property disputes are also in flood.However,the concept,legal attributes,legal ownership of virtual property and the specific procedures for dealing with disputes over virtual property are not clear.There are few relevant provisions on virtual property in China.Article 127 of the General Principles of Civil Law formulated in 2017 incorporates virtual property into the object of rights.However,this provision is only a matter of time,and there are no more in-depth and specific provisions in China.In judicial practice,the court often has no way to deal with virtual property disputes,or the phenomenon of "different judgments in the same case" is ubiquitous.The most practical problem is the distribution of burden of proof in virtual property infringement disputes.This problem is a problem that both sides of disputes have to face in the court trial process,and it is also a problem that will be involved in the whole trial process.Therefore,the academic discussion on this issue has never stopped.In view of the problem of burden of proof in virtual property infringement disputes,the author first starts with the subject matter involved in the virtual property infringement disputes,and after understanding the concept,attributes and ownership of virtual property,clarifies that virtual property is a real right object owned by operators and occupied by network users.The infringement disputes on this object mainly include user and third party infringement and operator infringement.After a detailed analysis of these two types of cases,the author finds that the allocation of burden of proof should be discussed according to the situation of these two types of cases.According to the particularity of virtual property infringement disputes,the consideration of value choice and the influence of the principle of liability fixation,the general distribution rules of burden of proof should be applied in the cases of infringement on users and third parties,that is,the distribution rules of "who advocates,who evidences";and the distribution rules of burden of proof should be applied in the cases of infringement on operators.In order to further improve the distribution system of burden of proof in virtual property infringement disputes in China,the author combines the distribution rules of virtual property with the reality of judicial practice to discuss,and finds that the mainproblems are concentrated in the tort disputes between operators and users,and there are many problems when users and operators actually bear the burden of proof.Therefore,the author studies the foreign legislation and draws on the relevant excellent experience of foreign countries.In order to improve the distribution system of burden of proof in virtual property infringement disputes,the author believes that,first of all,it is necessary to formulate separate laws and regulations on virtual property and clarify the relevant concepts of virtual property;secondly,it is necessary to stipulate the imputation principle of virtual property infringement disputes in the Tort Liability Law so as to make the court hear cases.There are laws to follow and rules to follow.Finally,in the face of the problems of obstacles to proof,electronic evidence and value evaluation in the process of proof,we should start from the specific system to improve.
Keywords/Search Tags:Virtual property, Burden of proof, Inversion of burden of proof, Value evaluation
PDF Full Text Request
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