On the Regulatory Model and Pathway Development of the Obligation of Gathering Fact and Evidence
Our country's obligation of gathering fact and evidence presents the dispersion of procedural norms,the individuality of entity norms and the divergence of theoretical interpretations,which seriously affects the mode transformation of gathering fact and evidence,the choice of paths between entity and procedure,the reasonable development of procedural content.The obligation of gathering fact and evidence has integration advantage of explanatory power,namely the ability to adequately explain the lowering of standard of proof,the motives of providing counterevidence and the identification of negative consequences,so as to become a explicit legal norm from implicit jurisprudence.The empowering and obligatory norms initially formed in the substantive law are far from sound and comprehensive system,and the obligation of gathering fact and evidence in the procedural law has the function of filling the scope of relief and simplifying the way of realization,so there should be a shift from a decentralized construction of claims to a procedurally focused model.The constituent elements include the elements of application and defense,the legal effect is more appropriate to adopt the doctrine of presumptive truth rather than the doctrine of free evaluating evidence,and the effectiveness evaluation norms are more conducive to delimiting the boundary of obligation.
gathering of fact and evidenceinformation provisionevidence collectionburden of claimburden of proof
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维普
