On The Presumption In The Civil Action

Resolving the civil dispute between the parties impartially is the target of civil procedure, so it is necessary that scientific and rational system of facts cognizance should be established, then the judges apply law related and resolve the dispute according to facts. Basically, there are two kinds of methods to cognizance facts in the court of countries in civil procedure, that is, proving based on evidence and presumption. Presumption is an important rule of evidence both in civil law countries and in common countries and plays a very important role in civil procedure especially. Under the influence of objective trueness, we have seldom studied presumption and there is not provision about presumption in civil procedure law, but there are some provisions about presumption in judicial interpretation, which have obvious flaw.This thesis has observed presumption: First, it has introduced some civil law countries and common law countries' theory about presumption ;then it has observed the theoretical base of presumption , the connotation and the extension of presumption and the effectiveness of presumption based on possessing materials widely and analyzing materials profoundly ; meanwhile, it also has expounded the fundamental principles of presumption exertion, the procedural rules of presumption exertion and the relief method to the party ,brought forward legislative proposition about presumption rules in expectation of perfecting presumption rules.There are about 45000 words in the article, and the article consists five parts:Part One: foreword. It has mainly introduced that presumption rules are the important part of evidence system of civil law countries and common law countries, and the study actualities of presumption and legislative actualities of presumption in our country.Part Two: it has focally observed the fundamental theory of presumption: including the theoretical base of presumption, theconnotation and the extension of presumption and the effectiveness of presumption. There are three theoretical base of presumption, that is, human reason and experience, public policy, litigious efficiency and relativity of proving. The thesis has considered that presumptions consist of presumptions of law and presumptions of facts, which can be rebutted. This thesis holds that the party claiming presumption shoulders the burden of persuasion of basic facts and the party opposing presumption shoulders the burden of persuasion of presumed facts. The burden of persuasion never shifts. With regard to the relationship of presumption and the burden of claim, the thesis has held that the party who claims presumption only need claims and proves the basic facts, and that the party who claims presumption should claim not only basic facts but also presumed facts.Part Three: observing the exertion of presumption in civil litigation, including the fundamental principles of presumption exertion, the procedural rules of presumption exertion and the relief method to the party and analyzing of presumption exertion in civil procedure. Thesis has held there are three relief methods to the party who opposes presumption ,that is, disproving basic facts, disproving presumed facts and disproving human reason and experience. The thesis has analyzed a civil case in order to demonstrate the exertion of fact presumption.Part Four: expounding the perfection of presumption rules, it has evaluated some provisions about presumption in judicial interpretation and some provisions about presumption brought forward by some scholars, then has put forward legislative proposition about presumption rules in expectation of perfecting presumption rules and establishing scientific rational system of facts cognizance.Part Five: the concluding remarks. It has summarized main standpoint of this thesis and considered that judge' ability should be enhanced timely.