On the Primary-Face Proof in Civil Litigation in China

서지정보

· 발행기관 : 원광대학교 한중관계연구원
· 수록지 정보 : 한중관계연구 / 6권 / 1호 / 203 ~ 230페이지
· 저자명 : 陶婷

초록

As an important system in the law of evidence, the primary-face proof gradually developed after the implementation of the German Civil Procedure Law of 1877. Especially after the implementation of the law, difficulties from the thinking mode of legal evidence turns to free proof, also regarded as the premise of the development of the primary-face proof system by theorists. Based on the deep accumulation of theories and legal precedents, and the irreplaceable role of primary-face proof in proof of causality and accountability in judicial practice, the German Civil Procedure Law recognized the primary-face proof in specific cases in 2005. In practice, the German Court of Appeal often used the primary-face proof as a means of correcting the facts determined by lower courts. Therefore, it is of great significance to strengthen the judges' free proof and to relieve the litigants’ difficulty in proving causation and fault.
In China’s current judicial practice, there are a large number of cases in which the factual presumption of judging is abused. The judges deliberately use the presumption of fact to damage the interests of litigants, resulting in the lack of judicial credibility. The first reason is that the broadness of the factual presumption gives the space for the judge to operate freely, because the specific known facts required by the factual presumption and the probability correspond with daily life experience is quite different, Judges, by factual presumption, can also exempt the litigants from the responsibility of giving proof in view of the fact that the probability is low; secondly, the quality of the judge is not high, imperfect understanding of the factual presumption leads to misusing of factual presumption. There are a large number of wrongdoings of factual presumption in practice, so there is a claim in both German and Chinese academic circles to replace the factual presumption with primary-face proof.
Therefore, China should introduce a system of primary-face proof to make it parallel with the factual presumption. These two systems should be applied according to the strength of the probability, so that judges can form a conviction on the facts of the case, and to prevent the judge from abusing the judicial power and harming the interests of the litigants in order to achieve fairness and justice.

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