New Discussion On The Standardization Of Presumption Of Fact

The presumption of fact(the “Inference” in American law)occurs in the process of the trial of the case facts.It is a mean for the fact founder to deduce the case facts according to the rule of experience in daily life.In the process of the formation of psychological evidence,the judge will use the rule of empirical in the process of proof evaluation or other means of fact determination,so the concept of the presumption of fact becomes unclear;at the same time,the basis of the rule of empirical is based on probability rather than legal provisions,which is uncertain,so the presumption of fact has been questioned harsh both in theory and practice.The evolution process of the rules of presumption of fact in the field of civil procedure in China reflects the progress of the legislator's understanding of the application of the rule of experience and the rule of proof in the presumption of fact.In judicial practice,there are also a large number of cases that make use of presumption of fact to make case decisions.However,the legal rules do not give a clear definition.In the judicial practice,the judge is very restrained in the process of applying the presumption of fact.In some cases,the application of the presumption of fact even confuses the standard of proof of the presumption of fact,and refuses to apply the presumption of fact in the case of obvious applicability,so as to judge the burden of proof.At present,there are many voices in the theoretical circle who advocate to cancel the concept of presumption of fact in order to solve the current problems,and also advocate to classify the rule of thumb with probability,so as to apply different types of rule of thumb to meet different requirements to regulate the application.By analyzing the nature of the presumption of fact and other means of proof,whether indirect evidence or inference cannot completely replace the presumption of fact,the presumption of fact has its own unique nature;combing the rules of prima facie and the rules of Res Ipsa Loquitur,the direct introduction of the extraterritorial rules can not properly solve the problem of the presumption of fact.The presumption of fact has a unique function for the presumption of fact.Compared with the presumption of law,the presumption of fact can be more flexible in the application of specific cases;compared with the consequence that the judge of burden of proof often judges one party to lose the lawsuit,the presumption of fact can help the judge to find out the facts of the case and avoid directly applying the judgment of burden of proof when the means of proof are not exhausted Judgement.Presumption of fact does not transfer the objective burden of proof.Its effect is to transfer the subjective burden of proof and reduce the difficulty of one party's proof.At this time,the opposite party can refute and weaken the probability of the presumed fact.The key point of improving the presumption of fact lies in the application of the rule of thumb.It is the proper meaning of the rule of thumb to formulate the "rule" to restrict the judicial application,but the content of the rule of thumb itself is not a legal rule.It is of little significance to guide the practical application only from the perspective of the probability of the content of the rule of thumb itself.Combined with the cases in the current legal provisions and judicial practice of our country,and drawing on the theory of "typical fact process" of the apparent proof rule,it is advisable to set up a typical guidance case system from different types of entity legal disputes,and guide the application of the presumption of fact in the same kind of cases;drawing on the procedural operation of the self-evident rule of fact,it is advisable to require the judges to strengthen their attention to matters in the judgment documents The reasoning in the process of factual identification and the right of debate of both parties in the process of factual identification are guaranteed,and the identification of case facts by the rule of experience is included in the objective scope of cross examination.