Research On The Civil Standard Of Proof In Absentia

Absentia, as opposed to the seat of a case, is one kind of the trial modes. The traditional academic point regards absentia as a special trial mode formed while the party summoned legally, does not appear or dose not exercise any right of defense at the court in debate day, but the court can not refuse trial. Chinese academic circles’studies on absentia are still stuck in how to build on the procedures, and almost do not refer to the related systems below the procedures. The beginning of the proof standard is a little late but it is still in the exploration.Absentia dated from the ancient Roman times, and formed two models during the modern times-one part debate judgment and the trial by default judgment. In other countries, the development of the system is more fully, and the system is also more mature. Just by comparison, Chinese modest absentia legislation and unknown procedures bring a lot of trouble to the judicial practice, among which is the most protruding:the actual confrontation among the parties has not existed, then on the condition that only one party puts to the proof, how to form Finding and Fact, and what extent that the parties put to the proof can be as a judicial decision? These issues deeply troubled litigants and judges.This paper firstly defined the concept of the absentia proof standard. The author thinks that absentia not only can be understood as the behavior which the parties do not appear in court to participate in the litigation.In the real sense, the purpose of the parties to appear is exercising litigation rights fully. But absence in court or appearing without any words all indicated giving up the litigation rights from the behavior, so the absentia should refer a kind of litigation modes that the parties ignore to exercise litigation rights and do not defend.Secondly, the proof standard of absentia is the subordinate conception under general proof standard which is applied for special trial modes, and its theoretical sources, the legislative position and the general proof standard have a natural link. This article starts from the analysis of basic proof standard theory, investigates the different legal systems of evidence legislation, tries to find a more reasonable mature proof standard and theoretical basis which Chinese legislation and judicial practice can learn from. There are some connections between the proof standard and the mode of trial, which determines that the proof standard in absentia system should be distinguished from in the legislative seats. The proof standard of absentia has its own characteristics. And it also reflects this specificity during various national legislation of the proof standard on absentia. It is reference to Chinese legislature on proof standard of absentia. According to comparisons and analysis, the author chooses different legislative models of various countries, and finds that the proof standard of absentia different due to different legislative models, but they alone can not solve the real difficulties alone encountered in the administration of justice.Finally, on the basis of China’s actual conditions and the existing legislative framework, this article proposes constructing our national proof standard legislation of absentia under the premise of straightening out it. And the author thinks this proof standard should be with some means of support to achieve the best effect.