Research On The Application Of The Proof Standard Of The Action Of Objection To Execution By The Outsider In China

The standard of proof is the core and soul of litigation proof,which directly determines the standard of fact determination.The action of dissent of execution by the outsider is a lawsuit that the outsider claims to have enough civil rights and interests to exclude the compulsory execution to the execution court.The application of the standard of proof affects the determination of "civil rights and interests sufficient to exclude enforcement".In judicial practice,there are various standards of proof for the action of dissent by the outsider."High possibility","excluding reasonable doubt","superior evidence" and "higher standard of proof than ordinary cases" can be presented in this type of judgment.Due to the different standards of proof,the phenomenon of "different judgments in the same case" is very common.It is not only of theoretical significance,but also of great practical value to study the standard of proof of the action of dissent by the outsider.First of all,this paper analyzes the current standards of proof in civil litigation in China,in order to find the corresponding coordinates for the standards of proof applicable to the action of dissent by the outsider.China has built a multi-level civil litigation proof standard system based on "high possibility",supplemented by "excluding reasonable doubt" and "greater possibility".However,the standard of proof is too general,and the law has not yet made detailed provisions on the proof standard of outsider’s execution of objection action.The application of the standard of proof in the lawsuit of objection to the execution of the outsider in the theoretical circle mainly exists in the game between the "high possibility" standard of proof and the higher standard of proof than in the general civil procedure.In the research on the current situation of the application of the standard of proof in the action of execution objection by the outsider,this paper adopts the methods of empirical analysis and case analysis,The executive judge generally thinks that the higher standard of proof should be applied than that of ordinary civil cases,while the trial judge thinks that the standard of proof of ordinary civil cases should be applied based on the legality of the standard of proof.Through the overall analysis and sampling analysis,there are four main problems in the application of the standard of proof in the judicial practice: the expression of "multifarious",the wrong application of "advantage evidence" principle,"the elimination of reasonable doubt" in name but not in reality,and the improvement of the standard falls into the "reasoning dilemma".Through further analysis of the above problems,it is found that there are three main reasons: the cognitive bias of judges,too careless legislative provisions and insufficient reasoning of documents.The focus of the discussion on the application of the standard of proof of the action of objection to execution by the outsider is whether the higher standard of proof should be applied than that of the general civil action.From the analysis of the following four aspects,it is concluded that the standard of proof should not be improved in the case of execution objection.First,the reason for raising the standard of proof is not sufficient;Second,improving the standard of proof will not be conducive to the realization of litigation purpose and efficiency value;Third,improving the standard of proof is not the best way to prevent false litigation;The fourth is the comparison of the interests between the applicant and the outsider.On the basis of this point of view,this paper puts forward four suggestions to improve the application of the proof standard of the action of objection to the execution of the outsider.First,the principle of strict examination of evidence should be established in the trial of the action of dissenting from the execution of the case;Second,refine the rules of substantive law,and gradually clarify the types of "civil rights and interests sufficient to exclude enforcement" and the constituent elements of various types of rights and interests;The third is to strengthen the analysis and reasoning of the fact finding in order to achieve the same effect as the adjustment of the standard of proof;The fourth is to compile and distribute the guiding cases of the application of the standard of proof in the case of the outsider’s execution objection,so as to make the judge feel the scale of the application of the standard of proof in this type of case more intuitively.