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Analysis of Judges’ Logic and Approaches to Distribute the Burden of Proof and Examine Evidence in Civil and Commercial Cases

Author: LiQing
Tutor: LiHongWu
School: Shandong University
Course: Legal
Keywords: Distribution of the burden of proof evidence judgment Discretional Evaluation of Evidence standard of proof
CLC: D926.2
Type: Master's thesis
Year: 2011
Downloads: 26
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Abstract


In the realm of evidence law, the distribution of the burden of proof and the examination of evidence are very important issues. In trial practice, how to properly distribute the burden of proof, rationally use Discretional Evaluation of Evidence, and appropriately measure the standard of evidence and verdict, many judges find it difficult to handle in civil and Commercial cases. Particularly in complex and difficult cases, facing a large amount of evidence, the judge often gets at a loss. There is an urgent need for judges’ clear thinking and rigorous method in resolving the issue. Only by developing good logical reasoning on evidence judgment and the distribution of the burden of proof, can we take accurate, clear steps, in handling all kinds of civil and commercial cases intimate knowledge. To meet the practical needs of trial practice, the present study explores the appropriate logic and approach of this distribution of the burden of proof and evidence examination in civil and commercial cases with an appropriate combination of rules of some theories, with an assessment of "Civil Law", and "rules on Civil trial Evidence by Supreme People’s Court" as the basis. This favorably applies to trial practice. Besides, the application of discretional evaluation of evidence to evidence judgment is nailed down for its great significance and the integration of the subject.This thesis is divided into four chapters. The first chapter deals with the distribution of the burden of proof, and the chapter is subdivided into five sections, to describe respectively the implication of the burden of proof, the basic principles of the distribution of the burden of proof, judges’ logic on the burden of proof distribution in civil and commercial cases, the transfer of subjective burden of proof, the application of objective burden of proof in uncertain cases. We contend that the logic for the judge to assign the burden of proof should be the following three-step sequence:first check whether the case belong to the scope of burden reversion abided by laws or judicial interpretation, and if the burden reversion does not apply to the case, the general rules of distribution of the burden of proof will be adopted. Last, in a special case equitable law of allocation of the burden of proof will be applied. Judges, to assign the burden of proof, first identify the object of proof, and then start from the analysis of legal norms to distribute the burden of proof. The second chapter discusses examination and judgment of evidence, which is subdivided into two, to discuss judges’ job and logic on evidence examination and the specific approaches of evidence examination respectively. We hold that in judging the evidence we should first examine the evidence’s objectivity, and secondly examine the relevance of evidence, and finally examine the legality and legitimacy of the evidence. ChapterⅢdeals with the application of discretional evaluation of evidence to evidence judgment, in which the implication of discretional evaluation of evidence and feasibility and restriction of discretional evaluation of evidence on evidence judgment are interpreted. ChapterⅣfocuses on the application of standard of proof in evidence judgment, where the meaning and division of standard of proof and elements to be considered in judges’using the standard of proof are discussed in detail.Hopefully the present study can benefit the judges in that the approach interpreted in the thesis can clarify how to handle the distribution of the burden of proof and evidence examination. It contributes to the verdict of lots of suspending civil and commercial cases.

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CLC: > Political, legal > Legal > Chinese law > Justice system > The court
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