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Research on the rule of presumption

Author: WangHeng
Tutor: MaGuiXiang
School: Fudan University
Course: Legal
Keywords: presumption rule of thumb legislative system
CLC: D90-051
Type: Master's thesis
Year: 2011
Downloads: 39
Quote: 0
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Abstract


The rule of presumption means understand some unknown facts according to some known facts from some empirical rule when there’s no direct evidence.If someone who undertake obligation to prove that what he says is true, no idea on others’ thinking or some evidence too difficult to get will be unfair for him. Thus we should maintain some un-acquirable evidence by the rule of presumption which contains rule of basic facts, normal linkage, presumed facts and retort.The presumption is very important in the legal system. The correct utility of the presumption not only can make the judges’working more effective but also can protect the rights of the parties. And also it can reflect the social equality. So it is very important to improve the presumption. At the same time the rules of presumption fixed in legislation are not so many with a glance especially in enactment of criminal law. Even the word "presumption" is used very scarcely but "regard" instead. The essence is to conclude some facts to be proved by the normal linkage of one thing and the other thing. At profound level, the systematism is nowhere near enough. For instance, not enough conceptualization formulation on the rule of presumption, its basic comprising rule of basic facts, normal linkage, presumed facts and retort are scarcely mentioned;no rigid differentiate between criminal presumption and civil(or administrative). So that it’s very important to complete the rule of presumption in our country.As a kind of evidence rule,I think the most important to perfect the presumption rule is committing to legislation. That’s the best way for settling actual problem. To suit the rule of presumption can improve the efficiency of lawsuits and also restore the fact of a legal case. But for the two limitation as probability and subjectivity, to abuse the presumption rule may cause wrong case and even decayed in justice. We can do that by two levels:First on basic principle which stipulate basic rule obeyed by all sorts of litigation procedure. The second level do on specific operation which regulate different rules such as civil (or administrative) and criminal procedure

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CLC: > Political, legal > Legal > Theory of law (Law) > Law and other disciplines > Legal Logic
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