Presumption is a relatively complex judicial system. In terms of introduced from outside the rail system in China, is in the nature of the concept of presumption and presumption, still in the efficiency of the classification of presumption and presumption and presumption and confirmed the obligation, there are a lot of controversy. The theoretical research of indecent our current state of longitudinal, more than the eve of from common law countries, especially hands-on American legislation and judicial practice, as long as a few of the Department through process of area of our country Taiwan perhaps the works of Japanese scholars occasionally touch to the continental law countries, especially in Germany. By the author to study the opportunities in Germany, this paper intends to important to German legislation, judicial practice and actual research status as the research focus, a profound analysis of putative intrinsic and connotation, in order to our country the actual development and coherent rail system perfect make meager contribution. This paper is divided into six chapters, including an introduction and a total of eight departments. Introduction part introduces the topic background and China on the topic of the actual research situation, and points out the research methods of this article and research route of retreat. Think that although the between different types of presumption is matched with the structure. This, however, is not enough to support a neat and tidy definition, also did not annotated putative nature sites. Is to, the notes of the article directly to the different types of the presumption as a breakthrough point, deep discussion of the inherent content of each category. Chapter one discusses the presumption of justice, which is divided into four sections. The first section studies the concept of judicial presumption. It is pointed out that the presumption of justice can be divided into judicial practice and judicial power. Judicial power of the presumption, in addition to the presumed object is not a realistic, but a power, perhaps say power condition, in many places and justice to the reality of the presumption as to analogy and practical. Except for a few cases, the legislation is based on other considerations, the experience of the existence of the existence of the establishment of the presumption is not in terms of the establishment. The application experience and the legal system is not inconsistent with the legal confirmation. The second section discusses the differences between the presumption of justice and the quasi system. It is pointed out that the presumption and the fiction are two kinds of systems which have no relation to the system. The proposed system through the process will constitute the elements of the A and the composition of the elements of the same B, which will be the composition of the elements of the a defined by the judicial effect and the composition of the elements of B, so is a simple legislative skills. Intends to make the system into a dispute. In the third section, it is not true that the presumption of innocence and the presumption of disease (normal presumption of energy) are not true. The fourth section focuses on the discussion of the special place of the presumption of power in the judicial. The conclusion that the existence of a power from the power of presumption is in reality is a series of reality, and the whole answer to the response of the judicial delineated. The second chapter discusses the presumption of reality. This chapter is divided into two sections, the first section of the actual presumption of the significance of the study. Think above all we should be recognized, and cannot avoid the actual presumption of this concept. Presumption of fact and not judicial origin, judges must set out actually from and after the ideological rail and rail experience, draw another important reality in the presence and absence of the conclusion of such a reasoning process. In the second section, it is important to discuss the practical application of the presumption of the two varieties of the actual situation and the application of the situation and the actual situation. Outside evidence to "experience the underlying track is" perhaps saying "golden experience of the track" as the basis, to "model of matters through" as the condition, with "no matter how a certain" structure. Case evidence is also called direct evidence, it is based on the simple experience of the track, it can be divided into the case ring and the chain. And points out that there is a difference between the evidence and the case. The third chapter discusses the relationship between presumption and the confirmation obligation. This chapter is divided into five sections. Section one important research confirms the obligation of internal. The proof obligation can be divided into the objective significance, also known as the obligation to put forward the evidence, and the confirmation of the customer's sense of obligation, also known as the confirmatory obligation. Guest's proof of the obligation to guide the judge in the case of the truth of the case when the truth is not clear how to make a decision. Assume that the customer is the root of the proof obligations, it determines the size of the objective of the proof of responsibility. Second section on the distribution of proof obligations. The distribution of the obligation to confirm the obligation must be left in the detailed litigation, not in detail the status of litigation for the transfer, is the end of the legislation to stop the distribution. The distribution of the duty of proof in the civil case is classified as the judicial element. In criminal litigation proof obligations, especially in a case of public prosecution, because Criminal Litigation Authority query visit doctrine, authority to review objectively, and presumption of innocence and doubt the existence of the crime from the basic principles, generally speaking only by the accused party in charge of the examination of the bear. But in China's huge industrial origin unknown crime "and industrial origin legitimacy proof obligations by criminal the plaintiff side bear. The third section discusses the system orientation of the obligation, and points out the significance of the research on the positioning of the system. Thought certificate 目录: |
