The abstract proof obligations of the partition coefficient legislators to guard against the risk of the judicial process can not be identified by the fact that, according to the principle of attribution of the relevant laws, the legislative intent of the risk in the subject of litigation between a pre-assigned. Allocation of burden of proof in the case of law does usually judge applied the discretionary treatment of discretion on how to allocate the burden of proof in litigation between the parties. Where the burden of proof, is also losing the risk lies not only in terms of litigants stake, and thus the allocation of burden of proof, but also directly related to the legislative intent and purpose of the relevant laws, such as the ability to be realized.
Paper Keywords State liability burden of proof in proceedings
Since 1997 the basic strategy of governing the country according to law, China's social governance model has been achieved from the management to the service, from controlling the tremendous changes to the authorized governance model. In this historical context, in 2010 the newly revised 'State Compensation Law,' a more prominent functional positioning of the right to relief. Both the principle of culpability for state compensation or state compensation procedures and the scope of its legislative changes more conducive to the protection of the rights of the claimant for compensation. The Criminal state power and civil rights fierce collision and conflict areas of high incidence, the power of the state to exercise more easily against citizens' personal rights, property rights and even the right to life. State liability in the nature of what is a public law duty or responsibility of private law or a combination of the two, may result in the allocation of the burden of proof for criminal compensation have a different understanding. Accordingly, this article intends to start from the national nature of the liability positioning study criminal compensation claimant's burden of proof, are provided for the benefit of criminal compensation judicial practice.
The burden of proof on the theoretical basis of allocation of the burden of proof
The burden of proof, also known as the burden of proof is the litigant's claims in order to get the support and recognition of the referee's commitment to give evidence and the use of evidence to prove their claims in order to avoid responsibility has adverse litigation consequences. Roman law period, had established a 'who alleges burden of proof' the burden of proof principle of distribution. The burden of proof in Anglo-American law of evidence, including production of evidence of responsibility and burden of persuasion. The former refers to the parties to provide sufficient evidence for the existence of a fact, so that it advocates the facts to be established, which has favorable referee; latter refers to the party of the proceedings to the referee convinced all fact should bear the burden of proof. In civil law, the burden of proof is usually the burden of proof on the burden of proof on the significance of conduct and results of meaning. The burden of proof on the significance of the so-called acts of the parties in order to avoid the risk of losing the obligation to provide evidence that the existence of the facts of its claim of responsibility, and therefore the burden of proof on the significance of conduct, also known as subjective burden of proof; result of the burden of proof in the sense of also known as the objective burden of proof, the facts of the case in the authenticity of the unknown state by asserting the existence of that fact shall bear the responsibility for its adverse consequences.
The burden of proof assigned theoretical origins far back to Roman times. Roman times on the burden of proof allocated mainly follow two rules: First, the plaintiff should bear the burden of proof obligations, the plaintiff pays the burden of proof should be made to the judgment in favor of the defendant; plaintiff to the best of its burden of proof, the defendant should be rebuttable plaintiff the evidence presented; burden of proof exists in the proposition does not exist in the person of denial. Contemporary burden of proof theory of distribution measure that the interests of the common law and civil law legal requirements Category said. Among them, the interests of the common law measure that a case-by-case for the allocation of the burden of proof on the premise interests measure need to refer to elements: policy, fair, evidence from the probable rule of thumb, the principle of good faith and so on. Legal requirements Category advocated under the existing laws and regulations to allocate the burden of proof, in accordance with the wording of the statute, the structure and application of the order, the law is divided into the right according to the regulations, the right to interfere with the provisions of the right to eliminate regulations and the right to exercise to prevent the provisions of and law classification is based on the relationship as the standard allocation of the burden of proof principle with the exception of sexual relations and the basic provisions of law and regulations to the contrary.
State liability nature of
On the surface, the national nature of the liability and criminal compensation burden of proof is no direct link and necessarily linked to the allocation of responsibilities. However, since there is a significant difference between public, private empowerment rules: the law follow the principles of law does is prohibit the empowerment and private law follows the 'no legal expressly prohibited is allowed' empowerment principles . Thus, the allocation of the burden of proof around the responsibility of public law and private law responsibility Responsibility will certainly showed a greater difference. State liability is a law duty means Responsibility, the power of reparation only need to provide public power authorities illegality is prima facie evidence or prima facie evidence of the burden of proof the legitimacy of the terms of reference behavior can be realized to the public authority result of the transfer of authority. In other words, the public power authority shall bear the burden of proof on the results of significance on the legality of the exercise of its powers. State liability is a liability of private law, in the same legal status means that the national authorities and the claimant for compensation, in addition to the legal basis for the parties the burden of proof and other factors into consideration to determine both the allocation of the burden of proof, the claimant for compensation in general burden of proof should be in accordance with the general rules of tort burden of proof of the distribution system, there is no difference between the protection of their interests. Should be noted that although the State Compensation Law, Article 26 clearly 'who alleges burden of proof' on the basis of the burden of proof principle of distribution, but also by the burden of proof will be detainees died in custody or The loss of the ability to work with the organ liable for compensation of the existence of an act allocation of the burden of proof of the causal relationship to the organ for compensatory obligations liable for compensation claimant does not mean that the other elements of compensation bear the burden of proof on the full results significance. In the relevant laws and the requirements of the particular facts in the course of the proceedings the burden of proof is unknown, the need to judge according to the law discretionary processing of the subjective perception of the referee on the property of the State liability might be interested in the Distribution of Evidential Burden direct impact. Thus, in the process of criminal compensation for the allocation of the burden of proof to discuss the nature of the State liability not only necessary but must.
At present, the nature of the State liability in general there are three theories, namely 'law duty', 'private responsibility' and eclectic say. Advocate 'law duty' commentators given two main reasons: First, the Department of State Compensation Law requires the public authority to the damage national laws also liable, and the civil law system provides private economic role of law, by completely different. The State Compensation Law and civil law does not constitute the relationship between the special law and the common law and civil law are separate legal; is national Constitution expressly provides that State liability, in order to carry out the purpose of protecting the rights of the people. National compensation law, both based on the provisions of the Constitution, the people in accordance with the provisions of the Law on State Compensation to claim for indemnity from the Department of public law rights. This is not the same as the right to claim for compensation in the private law relationship. Third, the state liable for damages, illegal exercise of public authority to the civil service job behavior elements against the rights of the people. Therefore, the State Compensation Law implementation of social tendency, not necessarily tied to the difference between private or public law.
This article endorsed the law duty said, 'The main reasons are threefold: First, laws are highly situational, out of the existing legislation of the country-specific research related issues may be of general applicability conclusions of the study, but may also damage the conclusions for and practical guidance. The main thrust of this paper is to study the distribution of the burden of proof in the criminal compensation under the current legislative system, thus we are more concerned about the practical value of the conclusions of the study; Although China enacted in 1986, 'Civil Law' Article 121, 'State organs and the staff of state organs in carrying out their duties, violations of the legitimate rights and interests of citizens, legal persons and causes damage, shall bear civil liability ', but the 2009 introduction of the' Tort Liability Act in the People's Republic of China on the special responsibility of the main provisions do not include the national organs and their staff, tort liability clause nor involved in the case of infringement by the state organs and their national staff, the provisions of the Civil Law and Tort Liability Act, 'as a national liability should not be a special civil liability on the basis of treatment; Third, the State liability in the process of state organs and their staff carry out their duties, the performance of duties of state organs and their staff must continue the performance of duties by civil behavior is clearly different. Private law liability is the subject of private law the inevitable continuation of the activities of private, State liability is thus targeted at private law liability is not conducive to the realization of the claim the protection of the rights of human solid.Reposted elsewhere in the Research Papers Download http://eng.hi138.com
Third, the public law of the State liability positioning claimant the burden of proof in criminal compensation
(A) criminal compensation claimant the burden of proof on the illegal organ liable for compensation: the burden of proof in the behavioral sense
Referee who, in the initial stage of the proceedings, in any legal sense of the fact that is does not exist. Is generally believed that China's State liability has four constituent elements, the main elements of tort elements damage the causal relationship between elements in the Elements of results as well as behavior and damage results. Criminal compensation claimant as a national compensation program sponsors, the burden of proof on the facts of essentials, otherwise the referee visible the fact that its claim does not exist. However, due to the State liability is a public law duty on the State Compensation Law, 'who argued that the allocation of the burden of proof is not proof of a result of significance on the allocation of the burden of proof. This paper argues that, in the course of criminal compensation, criminal compensation claimant the burden of proof required for the state organs illegal burden of proof in the sense of the kind of behavior rather than results. Such as the State Compensation Law 17, Paragraph 4 'torture or beatings, abuse and other acts or abetting, indulge others in battery, abuse and other acts resulting in bodily injury or death of a citizen,' the victim shall have the right to compensation by the state rights, Article 26, paragraph 2, 'detainees in custody death or incapacity, death or incapacity of the behavior of the organ liable for compensation to detainees causal relationship, the obligation of reparation authorities should provide the evidence. ' 'State Compensation Law,' to take the Criterion of Liability compensation case, the claimant for compensation on the organ for compensatory obligations illegal allocation of the burden of proof is only required to provide preliminary evidence to waive its burden of proof on the state organs illegal. In other words, if the illegal behavior of the organ for compensatory obligations liability is the burden of proof in the sense of an act, the claimant for compensation only need to provide the organ for compensatory obligations to the implementation of torture or beatings, abuse and other acts or abetting, indulge others in battery, abuse victims and other acts of the time, location, specific circumstances, the obligation of reparation organs that respond to its burden of proof does not exist behavior. Although there is no assault, abuse victims, is a negative fact, but that does not mean the organ under compensatory obligations and the burden of proof can not be completed, according to preliminary proof of the claimant for compensation for its illegal time and place through internal monitoring facilities synchronized audio and video materials formed the burden of proof. Quality words, the claimant for compensation illegal to complete the initial burden of proof on the organ for compensatory obligations, the organ for compensatory obligations will have proof of the legality of their behavior results meaning. Only in this way, to achieve prompt public authorities to exercise their powers and the protection of civil rights dual purpose.
(B) The claimant may other illegal organ liable for compensation responsibility of the constituent elements of the burden of proof: the burden of proof on the results of significance
As mentioned earlier, the claimant for compensation only organ for compensatory obligations behavior illegal bear the burden of proof on the behavioral significance, unless otherwise provided by law, the compensation claimant to cope with the burden of proof in the sense responsible for the results of the following matters: First, has compensation body of the request is qualified to undertake the burden of proof, that is, its is subject to the terms of reference of the organ for compensatory obligations or its staff acts of citizens, legal persons or other organizations, citizens victims heir, other relatives dependency relationship; compensation obligations organs to implement the infringement, such as measures taken to arrest the victim, and then decided to dismiss the case, not to prosecute or judgment of acquittal evidence to terminate the investigation of criminal responsibility; victims of personal rights, property rights have been infringed, as well as damage to the scope of , damage to the facts of the extent and the amount of loss the burden of proof; Fourth behavior and victims of reverse burden of proof outside the organ liable for compensation for damage suffered has a causal link to the burden of proof; Fifth organ for compensatory obligations request for compensation the burden of proof. The reason why the case be borne by the claimant for compensation, the main reasons are: (1) argues that the fact that there must be the existence of the fact that the burden of proof; (2) the ability to collect evidence and look at the distance from the evidence, the request for compensation people have the ability, but also more convenient collection of evidence.
The the criminal compensation claimant the burden of proof is a very complex theoretical issues, is a very complex judicial practice. In this paper, the the criminal compensation the applicant's burden of proof in the State Compensation allocated problem superficial view, there are a lot of inadequacies, also need further research and testing at the theoretical level and practical level.Reposted elsewhere in the Research Papers Download http://eng.hi138.com