| In 2015,the interpretation of the civil litigation law of the supreme people’s court stipulated two standards of proof: "highly probable" and "beyond reasonable doubt",which marked the transition from a single standard to a dual standard in China’s civil litigation.In 2019,a "greater likelihood" standard was added to the revised "certain provisions on civil evidence".In this way,the certification standard of civil procedure in China has been designed in a hierarchical and diversified way,and the certification standard system is finally formed.This paper focuses on the application of these three levels of certification standards in practice,in order to show the reality of China’s civil litigation certification standards as much as possible.The paper is divided into five parts.The first part is the interpretation of the legal norms of the certification standard of civil procedure in China.At present,relying on judicial interpretation,China has established a standard and standard system of proof in civil litigation based on highly probable proof standard and supplemented by removing reasonable doubt and great possibility.A diversified and hierarchical system of proof standard has been formed.However,the vitality of the standard of proof lies in the practice,and the judges’ understanding and application of the standard deserve our attention.At the same time,the rationality of the test system and standard also needs to be turned to practice.The second part is the analysis of the application status of the high probability standard.From the perspective of the application of the standard of high possibility,the standard of proof established by the relevant judicial interpretation in China is still abstract,and the application of the practice in the judicial practice varies from person to person,which makes it difficult for the standard of proof to play a corresponding role as the ruler of the determination of case facts.The judge does not attach much importance to the application of the standard of proof.The proportion of cases that clearly explain the standard of proof is not high,and some of them just mechanically invoke the standard provisions,and there is a situation that the standard of proof is lowered at will.The judge’s grasp of the proof scale to be achieved with high probability is not uniform,and it is easy to be confused with the lower standard of proof.In terms of the expression of the standard of proof,more judges choose terms such as "high probability" and "inner certainty".The third part,beyond reasonable doubt the application of the standard of proof and the problem.In specific cases,due to the excessively high standard of proof for the five kinds of facts,such as fraud,coercion,malicious collusion,gift and oral will,the parties are likely to have difficulty in proving evidence,and the proportion of the court’s judgment in determining such facts is also relatively low.As a matter of fact,the standard of high probability in our civil procedure is already very high,which makes the hierarchy between it and beyond reasonable doubt not clear.In practice,judges do not really grasp the difference between the two criteria of high probability and beyond reasonable doubt,so it is difficult to distinguish them effectively.As the core of the standard,it is not clear what kind of "doubt" has reached the "reasonable" degree,and what kind of litigation task sharing to exclude such reasonable doubt,as well as the specific operation such as the exclusion procedure.For the judge’s own protection,the "doubt" of the truth will not be shown in the judgment documents,and it is even more difficult to explain how to exclude it.The fourth part,the possibility of the application of the standard and the existing problems.Procedural facts are subject to the standard of probabilistic proof,which was added to the provisions on evidence in civil procedure revised in 2019,but has been applied in previous judicial practice.According to the research of specific cases,the proportion of cases that clearly apply the standard of proof is very low.The reason lies in that,on the one hand,the proof of procedural facts is not paid attention to;on the other hand,some cases where procedural facts become controversial are well proved according to the standard of high probability.When the judge ascertains the procedural facts,he does not distinguish them from the standard of proof applicable to the substantive facts.The relevant judicial interpretations fail to enumerate all procedural matters,and the judicial practice does not agree on whether the same standard of proof is uniformly applicable to other and all procedural facts.The fifth part is the suggestion to perfect the application of the standard of proof in civil procedure.To correctly understand the nature and function of the standard of proof in civil procedure,we should insist on the basic status of the judge’s concept of "inner conviction" in the standard of proof.The judge’s reasoning and logical reasoning for the determination of facts of the five special entities beyond reasonable doubt should be strengthened.The procedural facts other than litigation preservation and withdrawal that applythe standard of greater likelihood should be further defined.In addition to procedural facts,some substantive facts may also be subject to the standard of probabilistic proof,the scope of which should be clear and specific.It is an effective way to guide practice to publish typical cases that can properly explain the standard of proof. |
