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A Study on the Fact Presumption in Civil Trial Practice

Author: CaiZuoZuo
Tutor: GuoChunZhen
School: Xiamen University
Course: Legal
Keywords: Presumption of fact The rule of thumb Be applicable
CLC: D925.1
Type: Master's thesis
Year: 2008
Downloads: 140
Quote: 1
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Abstract


Presumption of fact in the course of the proceedings , the judge according to the situation in the free evaluation of evidence within the relevant facts to be proved in accordance with the relevant evidence and rules of thumb to make an assumption or inference . Presumption of fact exists objectively , it is the role of the civil action is general evidence that can not be replaced , but the fact that the application of the presumption has been the focus of controversy of jurisprudence and judicial practitioners . Jurisprudence against the presumption of fact that its subjectivity , poor stability, and to provide a reasonable basis for suspected to openly abuse of discretion for judges exists . Due to the content of the current Civil Procedure Law of China has not the presumption of fact , the applicability of the Supreme People's Court in 1992 on the Civil Procedure Law of 2002 evidentiary provisions of the fact presumed to have been involved , but these provisions not only did not clarify the presumption of fact relationship with the legal presumption , but thin, do not make specific provisions applicable conditions of the presumption of fact , the legal effect and applicable rules involve important issues of the operation of the judicial practice . Weak result in the vast majority of judges in the judicial practice of holding the exclusion of the application of the presumption of fact , questioning , cowering attitude , even if in compliance with applicable conditions also because the law does not specify without such legislation defects of the status quo with our theoretical research on the presumption of fact bold applicable . However , starting from the point of view of the judge center referee in litigation encounter proved means exhausted , a short trial period of the circumstances of the parties interests and needs urgent protection , rather than ignore the basis of facts that have been verified or determined to ignore the claims of the parties with respect to the facts to be proved , it is better to constructive role in the ease proved difficult , the efficiency of the proceedings , reduce litigation costs , safeguard social fairness and justice to face the facts , and then to consider the application of the applicable facts presumption set , program specification , supporting institution building to strict presumption of fact , overcome the subjective factors of the judges , and to reduce the applicable risk play a presumption of fact in the civil trial in China should function .

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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