"Defense"from the Perspective of Litigation Implementation——On the Defense Norms of Judicial Interpretation of Private Lending
The system of defence constructed by substantive law on the basis of claim rights-based reasoning is intended to counter the norms of claim rights,while the defence constructed by procedural law on the basis of default logic as opposed to denial is intended to clarify the allocation of the burden of assertion and proof.Contrary to the doctrine,the term""defence"in our legal code refers to the defensive acts performed by the defendant.The lack of clarity in the meaning of"defence"has led to the court applying the wrong rules of assertion and burden of proof,and the lack of disclosure of evidence in the reasoning of decisions.As a method of defence,defence in civil procedure law should be divided into substantive and procedural defence.The nature of the right of defense is determined by the requirement for the parties to assert it.Substantive defense are divided into denial defense and the right of defense in procedural law,based on whether the facts must be asserted by the parties.The latter bridges rights such as the right of defense and defense in substantive law,based on whether the rights must be asserted by the parties.Procedural defence are divided into evidentiary defence,denial of elements of litigation and the right of defence to the elements of litigation,based on whether the facts are required to be asserted by the parties.
system of defencecivil integrationlitigation practiceliability of assertion liability of proof
NETL
NSTL
万方数据
