On The Application Of Presumption Of Fact In Civil Procedure

In accordance with specific legal provisions or not,the presumption can bedivided into presumption of law and presumption of fact.Based on the normalrelations between facts which a judge choose according to the law of experience,presumption of fact is a method that he induces unknown facts from known facts inthe form of reasoning.As a method to fact-finding, presumption of fact is of importantvalues such as promoting a judge to find reality actively, improving the litigationefficiency,etc.However,the relevant laws in China do not define this methodexplicitly,only mentioning it in some judicial interpretations.In judicial practice,thereare some judges use the method to find facts.Because of the simple and crudelaws,the judges show some randomness when they use it.Therefore,it is important toguide them with some theories before the litigations being perfected.In addition to the introduction,this paper contains four parts including about25,000characters.The first part is the overview of presumption of fact.First,this part brieflyintroduces the basic contents on presumption and presumption of fact,and then givesthe definition and its basic structure of presumption of fact.Second,it pionts outseveral easily misunderstanded questions and compares presumption of fact andpresumption of law.At last,for the point of denying the concept of presumption offact，the author puts forward his own views：it is necessary to retain the concept andstudy the related problems of judicial practice with it.The second part is the basic theories of presumption of fact.This part mainlydiscusses the applicable basis，values and legal effects. The applicable basis ofpresumption of fact is the law of experience that reflects normal ralations,and it is ofimportant values such as alleviating prove difficulties,promoting a judge to findreality actively,reducing the litigation costs and improving the litigation efficiency,etc.The legal effects about presumption of fact include two aspects:its own effects and itsaffects to burden of proof. The third part is the application of presumption of fact.In order to providingtheoretical guidance on how to apply presumption of fact correctly to judeges, thispart focuses on the applicable principles， applicable conditions and applicableprocedures.The applicable principles contain final application,sufficient verificationand secondary presumption prohibited. The applicable conditions include:thepresumed facts are the main facts that there is no evidence to prove,the judgeconvinces the basic facts real,there are normal ralations between the basic facts andthe presumed facts,and the adverse party’s rebuttal is not established. The applicableprocedures include the links:startup,information and rebuttal.The fourth part is the presumption of fact in civil procedure in China.Afterdescribing the legislative and judicial status quo of presumption of fact in China,thispart analyzes their reasons in depth and puts forward some perfect proposals.