Presumption and burden of proof on the facts - from the "Peng Yu case" cut

Keywords:: burden of proof the Law of evidence presumption of fact

Summary: The burden of proof for the case the judge judges the authenticity of unknown facts of the case when the face of the universal choice for the pursuit of the facts presumed facts of the case the judge to avoid the burden of proof applicable to the dynamic nature of the case to the referee, the fact that the conditions applied the presumption is applicable presumption of fact burden of proof applicable to the case or whether the boundaries of the referee, the fact that the presumption applies, the proceedings before the allocation of the burden of proof is not a good shift, but the responsibility to provide evidence of metastasis.



"Peng Yu-case" (Peng Yu is the plaintiff Xushou Lan (Xu lady) v. defendants in the case of Peng Yu .2006 morning of November 20, the plaintiff in Nanjing Water Simon 83 bus waiting for the bus station, about 9:30 or so. There 2 83 bus stop at the same time. the plaintiff for taking bus 83 back in the line for a bus to the front door, the defendant first bus from the back door to get off. plaintiff fell wounded, the defendant found that the plaintiff will help to next of kin after the arrival of the plaintiff, the defendant and the plaintiff and the plaintiff will be sent to the hospital with family therapy. The plaintiff was diagnosed as a left femoral neck fractures and hospitalization, the purposes of hip replacement, resulting in a medical , care, these payments and other losses. on the original, which led to the defendant if the defendant injured in a collision problem, both differences of opinion: that it is the plaintiff and defendant in a collision off the injured lying on the ground; the defendant that its the plaintiff did not collide, they were all his good deeds done. case, Court of First Instance finds that the use of the fact presumed, "Peng Yu hit the plaintiff," and led to their injuries. For details of the case the first instance verdict, see: http:// blog. chinacourt. org/wp-profile1. php? author = 344 & p = 76592 ·, an ordinary Civil cases, after the media, especially online media coverage, publicity and even inciting, causing public concern and even high-level (6, 2008 On 1 May, the author of "Peng Yu case" for the key words in baidu search, find relevant page of about 239, 000, find the relevant pages in google about 208, 000, while Jiangsu Provincial Party Committee and Provincial High Court, and the highest spoke of the leadership of the court case .. "Nanjing old lady" is in quotes and give a special meaning (in the eyes of some friends "Nanjing old lady," became the "good deed goes unpunished," a synonym for the case in the high-level .. attention, like other sensitive cases, like the way to reconciliation and to avoid closing the social question, the pressure ("Peng Yu-case" to the Nanjing Intermediate People's Court of Appeal, the face of "feeling ran high," the public opinion court of second instance has no referee. Finally Peng Yu, Jiangsu Provincial High Court said the case has been president of reconciliation and the specific details of the settlement agreement confidential, see <<Chengdu Commercial Daily, "March 16, 2008 .. as a legal person, the heart of the case the first instance verdict, causing people criticism or even "hate" thing --- the fact that the presumption can not ask our enthusiasm aroused: the judge applied the presumption of fact decide cases, why not apply to judgments of the most common burden of proof?
Magistrate judge did not apply to the burden of proof is to misjudge it? Is the fact that there is no litigation on the presumption of their value, or the presumption of fact be misused in this case? Verdict if the case there is an error, critical error where? Essence of these problems answers are included in the fact that the relationship between the presumption and the burden of proof being, in order to more precisely clarify the relationship between the two, the author intends to be on the presumption, presumption of fact as well as the concepts of burden of proof to be defined, and then discussed from three aspects.

We know that a presumption of fact is presumed. The so-called presumption, in accordance with the Law or by the court in accordance with the rule of thumb, based on the known facts from unknown to infer the fact presumed, and allows the parties to the contrary is proved to be an evidence rule overturned (Tong said that according to theory, including the legal presumption presumption presumption of fact two, and the legal presumption is that legislators based on normal link between things, the presumption expressly provided by Law, this is only the presumption of fact. See related theories Jiang Wei: <<Evidence Law>> Law Press 1999 edition, p. 124, see also Bian Jianlin: <<Evidence Law>> China Politics and Law University Press 2000, p. 371., the so-called presumption of fact, is by the fact that the judge has made it clear (basic facts), according to a rule of thumb by free proof, and dispute the fact it that the (presumed fact) there. The fact presumed to belong to the sub-areas of reasoning, it is also a process of syllogistic reasoning from the premise minor premise and conclusions of the three aspects of composition. including the fact that A and B the fact that a contingent of contact between the (rule of thumb) is the major premise, a fact that (basic facts) is the minor premise, the fact that B (presumed fact) is the conclusion. [ 1] 194 and the burden of proof, also known as the burden of proof (some scholars believe that the burden of proof is different from the burden of proof. This is the default to take the theory content is identical between the two .. the content on the burden of proof, there are several ideas and doctrine. [2] 177-181 in view of the needs and convenience, the paper said the adoption of the academic through "dangerous burden that" the view that the facts of the case the parties claim the authenticity of an unknown state is one of the parties from the burden of adverse outcome of the litigation. [3] 281
First, the fact that the presumption applies to internal --- judges decide cases to avoid the burden of proof applicable to the dynamic nature of work
(A) the burden of proof for the judges to decide cases in the face of facts of the case --- the authenticity of an unknown reason when the compromise
Facts of the case and the legal norms constitute the basis for the judge the two referees for legal norms, "the judge knowing" is a basic theory of default, and for questions of fact can not make such a default. Factual issues as a prerequisite for application of the law become a problem tend to be more critical and the focus of controversy. Since the case overtaken by events, history has proven the nature of judicial proof, the fact that Discovery costs and limited rationality of judges and other factors (Proof of human activities on the lag, relativity, a detailed discussion limited, see Bian Jianlin: <<Proof of Relativity> ", in <" China Law ", 2001 2., on the whole, judicial cases, the judicial process must identify the facts of the case not reach a certain state of the two points --- "true" or "false." [4] 16 This means that in some cases, the identification of the facts of the case is bound between true and false in a fuzzy state, that "the fact that authenticity is unknown," the gray state.

According to Mr. Li Hao's study, when the authenticity of unknown facts of the case, there refuse to referee, dismissed the prosecution, not be accepted, mediation, according to the proportion of evidence and render a decision, to defer to the referee, lower standard of proof, the burden of proof to judge the use of the eight possible responses, [5] 104 theory and practice of action recognized by the view that the "burden of proof only to judge it based on legitimacy and universality, while the other response measures or do not have the legitimacy, or only in a limited range of application "(or agree with people to generally accepted rules of judgments, the facts do not always meet the right decision .. The reason why the modern burden of proof because of general applicability, it summarize the experience of human action, based on the authenticity of the facts of the case is unknown to the universality of a legal fiction, rather than a case of fiction, fiction is a rational, not an irrational fiction (a fiction is called rational is that the burden of proof is a composite measure of the law and the value of the sort of factors which make a decision. But fiction has a rational times, such as the ancient gods referee, due to historical constraints at the time this fiction seems to be rational people can accept.. Specifically, is the burden of proof before they occur in specific litigation, "a comprehensive measure, and the value of the sort of factors" and the abstract pre-allocated between the parties, [6] Once the case is the fact that the authenticity of an unknown state elements, the judge as proof of attribution of responsibility to render a decision, that is, if the plaintiff bear the burden of proof is the fact that the legal elements of fact against the plaintiff on the verdict , if the defendant bear the burden of proof is the fact that the legal elements of truth to sentence the defendant lost the case. can see the universality of the burden of proof applicable to a judge the authenticity of unknown facts of the case encountered when the "magic."
Prior distribution of the burden of proof necessarily good, "forcing" the parties to gather evidence of the case, once the parties to gather evidence and facts of the case can not prove the authenticity of the facts are unclear, the judge on the universal application of the burden of proof to judge cases. The referee, substantial burden of proof is based on the fact that the elements of fiction as a "true" or "false", and then render a decision in accordance with relevant laws and regulations (the legal fiction is a fact as the fact that B, so that A and B have the fact that the same facts the legal effect, and fiction is not available evidence to the contrary be conclusive. For example, <<Civil Code "> 66" I know in his name rather than a Civil act to repudiate it, as agreed to "; <<Succession>> 25 "legatee should, within two months after that legacy, to accept or disclaims that the absence of such, he is deemed to give up the legacy." legal fiction on the details see [Germany] Rosen Baker: <<burden of proof on the>>, ZHUANG Jing-hua translation, China Legal Publishing House, 2002 edition, p. 220 .. At this point, the judge apparently did not believe the facts in their own based on the referees, but in " Prepared by the fact that "as the basis to order the parties must accept the verdict. To ensure" Prepared by the fact that "the impartiality of judges, decide cases to ensure that the final responsibility for proof of legitimacy, it is necessary to generate through the program itself to ensure the legitimacy of the evidence collection and the court hearing. [7] 96-100 However, due to differences in ability of parties to litigation, prove the means of subjective and objective reasons such as lag, the burden of proof for the reality of the consequences of the referee is still the case that some cases may deviate from the decision fact. [8] 439 Thus, the existence of the burden of proof is essentially a means of human cognition in the continuous improvement tools and improve the quality still can not find the case of facts of the case taken by a rational system to overcome the limited safeguards, which also means that people from the method and process the best efforts can not determine the facts of the case, which was forced to take a rational compromise necessary last resort.

Back to "Peng Yu" Case, the plaintiff alleged that the defendant Xu Peng Yu-old woman hit her, she should adduce evidence to prove infringement of the four elements. From the Court of First Instance of the evidence available, there are two statements of the parties and the Peng Yu interrogation record of the electronic documents (for more evidence on the case, please refer to the first instance verdict: http://blog. chinacourt. org/wp-profile1. php? author = 344 & p = 76592 ·. Xu lady's statement is the accused be knocked to the ground injured, Peng Yu's statement that he did not collide with the plaintiff, he was just doing good. Peng Yu interrogation record of the main contents of electronic documents: Xu Peng said it did not hit, but I was Xu hit. But the questioning of the original material not found (during the first trial of cases, dealing with incidents of Nanjing Public Security Bureau Public Security Branch of the city traffic police station the defendant submitted the interrogation record Peng Yu made the electronic document, the electronic document is photographed using a mobile phone Peng Yu asked for transcripts made. electronic properties of a document display the production time for the November 21, 2006, that after the incident the next day .. In addition, after the accident, the city police station after receiving the alarm, the starting to deal with accidents. case sued after the court of first instance, the contractor of the accident to the police after the court made a statement of the main event, the main contents of the statement: the original, a collision occurred between the defendant (the electronic document, the contractor statement of the evidence the court qualified police and other issues, the defendant and the public, there are also doubts..

Alone the evidence, the plaintiff can not prove that he had been hit by Peng Yu. The available evidence can not rule out the possibility of Peng Yu knocked down the plaintiff (the defendant provided the plaintiff witnesses did not see Chen Erchun fall through, so their statements can not be Xu proved why the old lady fell. So, Chen Erchun's testimony does not prove the key issues for the role of the case., the authenticity of the facts is actually trapped in an unknown state. At this point the judge can determine based on the plaintiff the burden of proof against the old lady Xu .

(B) presumption of fact --- the judges to decide cases to avoid the burden of proof applicable to the dynamic nature of work
Case System for the burden of proof in view of the value of defect, the judge can not arbitrarily, simply facts of the case as a "unknown authenticity" and the referee for the burden of proof case. As long as the burden of proof than applies to the case closer to the facts of the case the referee's path, the judge will try to pursue, and the fact that the presumption is an important path.

As mentioned earlier the fact that the presumption is a syllogism reasoning: According to the daily life experience (rule of thumb), as long as there is a fact (based on the fact that) there is the fact that B can be presumed (presumption of fact) the possibility of the existence will be very large. And in litigation Once the basic facts have been confirmed in, the judge can rule of thumb based on the presumption of fact to infer the possible existence of very large. At this time, antagonism between the logical relationship is or natural (things are inevitable contact between the contact with or However, sexual contact two. inevitability of contact is a fact as long as there exist, there must be the fact that the presence of B. So when a certain of the facts, you can confirm the fact that B exists. For example, the parents and their blood type is type 0 children between blood type 0 necessarily linked. when there is evidence that a parent's blood type is 0, then the child's blood type is 0 type is inevitable. by necessity linked to the rule of thumb is not the way facts of the case presumption of fact., that is, when the basic facts prove the presence of A, B does not necessarily ensure that there is presumption of Shi Shi, but only the possibility of existence of the presumption Shishi B is very large. so that when a true basic facts, the presumption is true Shishi B The probability depends on the logical relationship between the probability of B: if the logical relationship between the probability of B higher the presumed fact that the higher the probability of B is true. [9] of 75 seen in the fact that the presumption is the philosophy of "general and individual "," General and exceptions "logical relations in the concrete application of the field action (the philosophy between the two things," general "relations or" normal "relations as a sufficient condition relations, the inclusion of the majority of this choice the possibility, only to exclude the possibility of a very small number, which ensures the logical relationship between the probability of B, for the presumption of the authenticity of the facts to create the conditions., the presumption reflects the fact that judicial respect for the law of social life, The so-called "ordinary experience that the true facts been generally believed that the courts have knowledge of their true"; [10] 59 Last presumption of fact in Civil proceedings are also covered together in the advantages of the standard theory of probability. [11] 92
Presumption of fact that the referee judges to avoid the burden of proof applicable to the dynamic nature of the case (except judges, the parties bear the burden of proof because of the profit motive, which also try to avoid the burden of proof to the judge for the case .. the referee's ability to gather evidence as between the parties and leaving traces of the objective world and so is not completely subjective and objective reasons, in some cases will inevitably lead to direct evidence relevant to the case can not be collected luck that has collected a number associated with the direct evidence --- evidence base associated with the facts. [12] According to the evidence of these associations, there is no direct facts of the case, but the judges give full play to their initiative and creativity, based on the association discovered evidence when (the basis of the facts) and direct evidence (presumed fact) or contact probability (rule of thumb), then infer that in normal presumption should be that fact. [13] 152 --- Judges initiative effort presumed fact more likely to be close to the facts of the case (in the "general" or "normal" circumstances , presumption of fact closer to the facts of the case. can see the facts on the facts of the case finds that the presumption in the burden of proof before the value, after full proof .. presumption reflects the fact that in the normal facts of the case under normal circumstances, the conventional case should be so, Although there is no presumption of fact can be seen to fully demonstrate the extent of the referee but the burden of proof than the case for the existence of the possibility of greater justice.

From the above analysis, the fact that the underlying presumption is only recognized on the basis of the facts, based on things from time to time contact probabilities determined by the facts of the case made, but the probability is not the same necessity. Therefore, there may be individual cases in a , the "individual" and "exceptional", "very state of" situation occurs, leading to mis-facts of the case. Such "abnormal" Cases of the Judges for the emergence of the facts led to the presumption of good purpose to pursue the facts of the case fall, so the risk of presumption of fact is not self-evident (for discussion see Zhang Yue: <<On the presumption of fact> ", in Jiahong editor <<Evidence Forum>" (Volume 5), Chinese Procuratorate Press, 2001 edition .. so We say "presumption of fact only after the exhaustion of other means of evidence of a bottom of choice."
Although the presumption of fact in that case in fact is dangerous, but the facts of the case by collecting associated with the basic facts, the use of rules of thumb and creativity to find the facts, just as the judge judges (including lawyers, detectives and even ordinary people) is clever the only criterion (a good judge must be a master of presumption of fact, from the clues (basic facts) can be found in the case, "Detective", Bao Zheng, Di Renjie, Lincoln, Holmes, Conan was like that, as a lawyer Lincoln by the "moonlit night you can not see that day," the presumption of fact been much talked about ..

"Peng Yu-case" in the authenticity of the unknown facts of the case, while the case the judge in the case of proceedings to pursue the use of the fact presumed facts of the case (on the original, whether the defendant collided, "Peng Yu case," the judge applied the presumption of fact boldly: "If The defendant is a good thing, according to social reason, the plaintiff's family arrived, it is entirely possible and let the implicit fact that the plaintiff's family members after the plaintiff to the hospital, and then leave, but the defendant did not make these choices, their behavior is clearly contrary to reason. "judges reasoning for details, see the first instance verdict: http://blog. chinacourt. org/wp-pro-file1. php? author = 344 & p = 76592. in the use of the fact presumed facts of the case to pursue the process of logical reasoning, Judge guilty of many logical errors, see Zhang Jicheng: <"Little significant impact on the case --- in Nanjing," Peng Yu-case "legal logic verdict critical>", in <"China University of Political Science of" No. 2, 2008 .. this line of thinking is undoubtedly correct, but the fact is only presumed facts of the case the judge seeking a tool, this tool is dangerous, so must be the tool limitations specific performance conditions applicable presumption of fact. If available to adapt to the conditions of presumption of fact, you can use to decide cases presumption of fact, or even lower can only choose the burden of proof to rule.

Second, the fact that the conditions applied the presumption and the burden of proof --- the fact that the boundaries of presumptions
Advantages of both the value of the presumption of fact there are dangers in the pursuit of facts of the case as a tool must be used with caution, otherwise the danger of presumption of fact will be amplified in practice. As Mr. Li Xuedeng said: "In the practical aspect in the inference in violation of rules of thumb and ethical rules, there is much to, Civil and criminal alike, under the pretext of freedom of evidence, more indirectly, by circumstantial evidence, or the so-called evidence for the inference of partial but not full, or even mere subjective speculation, thereby establishing a conclusion is no different to create a conclusion very dangerous special, undeniable fact. "[14] 301, the fact that the presumption of defining the conditions applied to avoid the danger of presumption of fact become inevitable and urgent, the presumption applies to the facts that:
(A) Basic facts and the facts presumed to have a high degree of probability between the (rule of thumb)
1 rule of thumb of the content. Based on fact and presumption of the fact that contact between the probability laws through experience to be sure. What rule of thumb it? Rule of thumb is established on the basis of experience, drawn by the fact that a large number of similar things However, sexual contact or between the general conclusions or general life of their experience, or specialized expertise. [15] 115 whereby the rule of thumb rule of thumb can be divided into general and special rules of thumb. the general rule of thumb, is the ordinary people from daily life, or experience in the legal life, the perception of rule of thumb, in particular, the rule of thumb is based on specialized technical personnel to obtain special knowledge or experience of the rule of thumb. [16] rule of thumb is the premise of presumption of fact, through the rule of thumb to grasp the basic facts and the facts presumed high degree of probability between the contact must be clear links probability inherent in general and individual, the relationship between conventional and exceptions. based on the rule of thumb that if you do not derive a general conclusion, the conventional characteristics, the fact that the presumption can not apply because the probability does not have made the case of the presumption, often produce false.

2 rule of thumb for reliability assurance. Rule of thumb adopted by the judge for the presumption of fact, it should be put in the proceedings of evidence of the fact presumed to be an open process, to accept the party's evaluation of social people, although only with a particular rule of thumb professional expertise to know, the judge should also be in the proceedings of evidence to the public, so the fact that the parties presumed negative side, the use of other experts to refute the rule of thumb (except in the proceedings to the heart of the presumption of fact permit be made public, but also in the Judgement to be made public .. the Evidence
"Peng Yu-case" the first instance verdict in the rule of thumb. Peng Yu case the first instance verdict in the rule of thumb is "the social good little" (meso "Peng Yu-case" the first instance verdict, you will find the judge's reasoning tracks: In the current society, people generally will not do good. only offender will go "help" the victim, now Peng Yu you "help" the victim, you must be the perpetrators .. this inference from the two judges clearly visible: The first is: " If the defendant is a good thing, according to social reason, the plaintiff's family arrived, it is entirely possible and let the implicit fact that the plaintiff's family members after the plaintiff to the hospital, and then leave, but the defendant did not make these choices, their behavior is clearly and 'reasonable' contrary, "The second is:" According to the daily life experiences, the plaintiff and defendant have not known, the borrower generally will not rashly, even if the defendant called the loan, there is a likelihood that assume responsibility for the accident should also be Please no interest in the platform bus the other person to prove, or explain the situation to the relatives after the plaintiff obtained IOUs (or state), and other written material. But the defendant in this case the situation does not exist, and the plaintiff to the hospital accompanied by family circumstances , by borrowing to the plaintiff is unlikely, and if injured people, the most consistent, reasonable, approach is to first advance payment. defense witnesses (ie, Chen Erchun) to prove the plaintiff and defendant to the police station handling both sides of this incident, from the This fact can be assumed that the plaintiff was knocked down by the defendant that is not knocked down by others, in this case the defendant can not be more borrowings. Based on the above facts and analysis, can be identified which are not loans, but should be compensation section. "
Presumption of fact the first instance verdict two words such as "reasonable" and "everyday life experience" and so, in fact, a judge for the social experience of the abstract, that is, facts of the case the presumption rules of thumb. The case whether the judge's rule of thumb is true ? I believe that the currently accepted ethical standards in the high social reality is not the case, with the case without interest and the general will not make a stranger lying on the ground made by Peng Yu "action" (due to the present facts of the case so far remained unclear, we, the outsiders will never understand the case may be the fact that, for the presentation of accurate, we can only say that the Department of Peng Yu "action" .. In other words, I agree with the first instance verdict in the rule of thumb.

(B) facts must be based on the fact that highly credible
Presumption of fact based on the fact that the minor premise, that has been proven to derive the fact that the presumption of fact. [17] 495 According to the author's understanding of basic facts including: 1. A well known fact .2. Trial on cognition, that the judge should be aware of their duties and the fact that .3. the plaintiff and defendant agreed statement of facts .4. by sufficient evidence of the fact that in the former case, the facts to be presumed, and claims that the facts, the facts can not be reconciliation and mediation as the basis of the facts. on the basis of the fact that the only requirement is credible. the so-called credible, that is generally recognized as ordinary people or experts in the field as a recognized or accepted by both parties.

"Peng Yu-case" basis in fact the first instance verdict. "Peng Yu-case" basis of first instance judge found that the two facts: first, Peng Yu, accompanied by his family to the plaintiff the plaintiff to the hospital, and the second yes yes Peng Yu plaintiff in the payment of two hundred day of the incident IOU and the money did not ask for multiple has not requested the return of the plaintiff. The basis of the facts consistent with statements from both parties.

(C) no evidence to the contrary must be overturned
Presumption of fact has been discussed previously is the use of things from time to time contact probability to find facts of the case. But after all, not the inevitability of probability, although the "mainstream", "General", "normal" under the case, but there are still "non-mainstream" "special" and "abnormal" exceptions. To prevent the exception of cases occur in the facts of the case finds that the error caused by the need to ensure a presumption of fact adverse party the opportunity to provide evidence to the contrary. If the facts provided by the presumption of adverse party evidence to the contrary is sufficient to prove exceptions to the presumption of fact is not established.

Evidence to the contrary the object of attack generally has two: the first is the rule of thumb, the second is the presumption of fact. Because the facts are credible basis for presumption of facts obtained, it generally can not be disproved based on the fact that the object of attack.

Peng Yu provided evidence to the contrary from the point of view, it is not on the judge's "less good in this society," the rule of thumb to refute (Peng Yu agree that the rule of thumb, do not know. Imagine, if this society, "one slip, million people (strangers) assistance ", the judge categorically not based on Peng Yu" which is "Peng Yu is presumed offender.. he was just defending their own line" courageous "and the use of witness testimony Chen Erchun the presumption of the fact that the judge direct attack. Peng's defense only evidence to the contrary is not refuted, Chen Erchun testimony is evidence to the contrary, but the old lady did not see Xu fall through, so that the testimony does not prove why the old lady fell Xu, therefore, Chener Chun's testimony and the key issues for the case no proof of the role, that does not hold to the contrary Peng Yu (author's views and Mr. Ji Weidong different from the testimony it deems Chen Erchun is strong indirect evidence to the contrary, the evidence to the contrary makes the doctrine and the fault free of evidence of probability in this case will do the presumption strange. see Ji Weidong: "Peng Yu-case fair Paradox>", in <<Financial "1 .. 2007
(D) to be just and noble concept of social value orientation
In the case of full proof, as long as the plaintiff (the victim) to prove that elements of the establishment of infringement, the infringer shall bear civil liability should be no need to consider the social value too much, because the noble pursuit of social values ​​have been internalized in the law being. As for the fact that the presumption applies to cases, the judge must tend to the pursuit of lofty social values, which is mainly reflected in the selection on the rule of thumb. carrying a just and noble social values ​​the concept of rule of thumb on a virtuous society, shaping the behavior of one kind The great role in promoting guidelines. If we put things behind in social life as a rule of thumb, it will result in negative judgments of real-life shape.

"Peng Yu-case" the first instance verdict in the presumption of fact the biggest problem is from the lofty social values ​​of the constraints. "Peng Yu-case" the first instance verdict rule of thumb is "the social good man less." The rule of thumb should be said that with the current social life in which people "multi-less attitude" psychological fit. When "the social good little" on the grounds the presumption that the infringer Peng Yu and decision on his commitment to civil liability, the ruling will guide people not to do good (" Peng Yu-case "rule of thumb is the judge of first instance," less good of this society, "people generally do not do good things. The offender will only go up," help "the victim, as long as you" help "the victim, on the presumption of harm you people. Because verdict guidelines on the role of the great social life, real life, intend to do good things people are concerned about the presumption of being placed in the perpetrators, and provide evidence to the contrary has proved more difficult that they are not the perpetrators, so they try not to do good ..) This rule of thumb based on the final form of the negative social judgments can be said to be disastrous shape (in "Peng Yu-case" after the May 7, 2009 (from the incident for almost two and a half years) , the author of "the old man fell to the ground no one dared to help," as key words in Google search to the pages 53, 400, in the Baidu search to the pages 3, 790, most of these pages about "Peng Yu-case" the first instance verdict on society The negative shape of life, and some even shocking page title, including "<Nanjing judge-made sin: the elderly in China collapsed no one dared to arm>>, the article described http://www. china50plus. com / html/13 / news_ 51199. shtml ·.

In my opinion, in order to protect and encourage the person to do good, when unknown authenticity of the facts of the case, they should be conducive to a just and noble social values ​​the concept of action to pursue, the fact that the presumption does not apply the referee, but the burden of proof applicable to the referee Although such judgments may let go of the "real" infringer --- Peng Yu.

The pursuit of noble social values ​​of the presumption of fact, the balance of fairness and social justice cases, the conflict reflects the value of social justice a priority goal (I need to declare that the pursuit of social justice, individual justice is not ignored. In view of the authenticity of unknown facts of the case To the social civilization and progress, only to abandon the "possible tortfeasor --- Peng Yu" the. procedural fairness in the pursuit of such cases of case law countries everywhere. This is also true that presumption and prove that the difference between total .. the Chinese People's University Professor Jiang Wei tells such a case: a taxi driver to take the initiative to the passengers handed the forgotten wallet where their company, when the passengers when the claim package to claim 20 yuan to 10 million now only , asked the driver to return. and the driver insisted that he did not take a penny within the package, the two sides at loggerheads over the last passengers to sue to the court to require the drivers to return the money that 10 million. As if the driver took the 10 million package of money Both sides can not be proved by evidence, leading to protracted cases. finished after this case, Professor Jiang asked: "Why not apply the facts of this case presumed to solve?" because our lives according to common sense, for a normal person , it took half the money will picked up, the rest of the half to send back? If the possession of a part and then send the remaining part of the back, it would mean that self-exposure? Since the driver picked up the money to pay the initiative to to the company, we can not be presumed to take the driver's money bag. [18] a presumption of facts of the case so that the driver can not only get rid of as soon as possible in favor of defendants tired, but also to encourage others to return money to return lost property were assured of a better shaping the society of great value.

Links to Research Papers Download http://www.hi138.com sum up, "Peng Yu-case" does not meet the conditions of the fourth presumption of fact (in addition to the fact that there is no presumption of compliance with the conditions, the case was the first trial judge also made many logical error, see Zhang Jicheng: <"Little significant impact on the case --- in Nanjing," Peng Yu-case "legal logic verdict critical>", in <"China Law UNIVERSITY"> 2008 2., can not Judgement for the fact that the presumption, the presumption only applies to the fact that the next bit of the burden of proof to rule.

Third, the fact that the effect of the presumption applies to the deduction of fact --- Distribution of Burden of Proof
We then discuss the following, where applicable, the presumption of fact, its action on the case before the allocation of responsibility for what is good proof of the validity of the presumption of fact. In order to discuss this issue more clearly, we start to have a presumption of fact and included in the study perspective.

(A) the fact that the starting presumption
This article discussed the fact presumed to be the start of the syllogism is the presumption of fact who claims issues.

The start of the main presumption of fact there are parties and judges, described as follows: First, the party advocates presumption of fact. It shall provide evidence of the existence of basic facts, and should persuade the judge to apply a rule of thumb, and the application of the rule of thumb should be drawn presumption of fact. Second, the fact that the adverse party is presumed. It should provide evidence to the contrary to the presumption against the rule of thumb, and the fact that in order to prevent the establishment of presumption of fact. But sometimes the basis of presumption of fact from the fact that the party (a judge to "known facts" as a basis for presumption of facts, the presumption of fact adverse side Throughout the proceedings the parties were the first to provide evidence to the contrary .. Third, the judge. it can be presumed to receive one of the parties claim the facts to convince the applicable presumption of fact, you can also use the basis of the facts have been discovered, according to their own conscience and life experience, initiatives for presumption of fact.

"Peng Yu-case" the first instance, the fact of the putative fact consistent with statements from both parties, and the rule of thumb is to judge from his own life experience, judges take the initiative to come to the use of the life experiences of the presumption of fact --- "Peng Yu knocked down the plaintiff. "
(B) not transfer the burden of proof
Whether common law countries or are civil law countries, the effect of the presumption of fact, that is after the fact presumed to apply to distribution of the burden of proof, the more common types of legislation and doctrine is the presumption of fact will only place the responsibility to provide evidence transfer, without the burden of proof would place ahead of the allocated conversion (here called the transfer is transferred to the other party by either party., as Mr. Luo Yong family said: "The judge leveraging free evaluation of evidence, rules of thumb, the whom the presumption of fact, made by a party who transferred in to the making, only 'the burden of proof is necessary', is actually the burden of proof. "[19] 113 applies to both parties to persuade the judge to take the initiative to apply presumption of fact or the fact that the judge presumption was like that.

The reasons for not transfer the burden of proof. First, the inherent risk of presumption of fact remain vigilant. Previously has been said before, the fact that the presumption is based on probability between things made contact, so that its contents to a relative and uncertainty, it is inherently risk, the fact that the presumption must be that the risk to maintain adequate vigilance. even if the basic facts are confirmed by the fact that the presumption is assumed that leaving the state, burden of proof has not been transferred to the other party on this, advocating the fact that there is presumption of the party can not exclude its burden of proof. If that presumption can lead to the transfer of the burden of proof, which in large part so that the party bears the burden of proof is not proof or evidence in inadequate conditions, win the case (no presumption of fact具有转移证明责任的功能,这反映出了事实推定在证明效果上要弱于法律推定..第二,事实推定并没有免除主张者对基础事实的证明责任.根据辩论主义,法官一般不会主动发现案件的基础事实,虽然对方当事人也可能有意或无意地提供基础事实,但基础事实一般还是由主张事实推定的当事人一方提供.[20]421第三,法官对推定事实的心证是暂时的.推定事实只是让法官对处于真伪不明的案件事实形成暂时的心证,而不能据此马上作出令事实推定不利方当事人败诉的判决.法官需要等待对方当事人提出反证予以反驳,只有对方当事人没有提出反证或者反证不成立时,法官才可以判决主张事实推定的一方当事人胜诉.第四,即使事实推定不利方当事人提不出反证,其仍可能胜诉.当事实推定不利方当事人没有提出反证或者提出的反证不成立时,法官可以判决主张事实推定的一方当事人胜诉,此处是"可以"判决其胜诉,而不是"必须"判决其胜诉,即法官也"可以"判决其败诉.这是由于事实推定的证明力较弱,即使没有有力的反证提出,法院也并非不得不相信该事实推定(有关论述可参见陶丽丽:<<事实推定制度研究>>,南京师范大学2006年硕士学位论文,第68页. .第五,当事实推定不利方当事人提出了反证,导致了推定事实也处于真伪不明时,只能仍按预先分配好的证明责任裁判,判决事实推定有利方当事人败诉(如果事实推定不利方当事人的反证证明推定事实完全为假,其更应胜诉..

在"彭宇案"中当原告无法完成证明责任,一审法官依据本案的基础事实推论出了推定事实———彭宇撞倒了原告.不过法官运用事实推定后,证明责任仍由原告负担.

(三)提供证据责任转移
提供证据责任的转移实质上就是上文中由事实推定不利方当事人提供反证.

提供证据责任转移的理由.事实推定是社会生活的或然性理性在民事诉讼领域的延伸,法官以"一般"、"共性"、"通常"如此,推论出推定事实也是如此.当法官进行事实推定后,虽然事实推定的不利方当事人仍有胜诉的可能性(根据前文,即使事实推定的不利方当事人没有提供反证推翻推定事实,法官仍又有可能判其胜诉.,但其仍应尽量提供反证,以攻击推定事实.只要事实推定的不利方当事人提供反证证明自己就是或然性联系的例外情形,该推定事实将归于无效.

反证攻击的对象.事实推定的不利方当事人为使推定事实归于无效,一般说来通过提供反证攻击以下对象以达到目的:第一,经验法则.动摇法官对该经验法则的确信,使法官不能根据该经验法则得出推定事实.第二,推定事实.只要事实推定不利方当事人提出的反证,证明自己就是"个别"、"例外"、 "非常态",就足以证明推定事实不存在(事实推定不利方当事人提供的反证无法证明推定事实不存在,但该反证使法官对该推定事实是否存在产生心证上的动摇,使该推定事实处于真伪不明时,根据前文的证明责任不转移,事实推定不利方当事人仍然胜诉..为使法官重新确信该推定事实,主张事实推定的当事人必须再度举证.第三,基础事实.一般说来,除非发现了新的事实,否则不能再攻击基础事实,这是由于基础事实的特性所决定的(基础事实必须是众所周知、或当事人双方一致认同的,否就不可能作为基础事实,这样一般情况下就不能再提供反证对其予以攻击..

反证攻击的结果.事实推定不利方当事人针对事实推定的反证攻击的最终结果有3种情形:第一,推定事实为假.事实推定不利方当事人只要对事实推定的3个环节的任何一个环节提出有力的反证(事实推定的3个环节即事实推定的三段论———基础事实、经验法则、推定事实.,且足以影响法官对推定事实的确信,就可认定推定事实为假.第二,推定事实为真.事实推定不利方当事人没有提供反证、或者提供的反证无法动摇法官对推定事实的确信,则就可认定推定事实为真.第三,推定事实真伪不明.事实推定不利方当事人提供的反证使法官对该推定事实是否存在处于真伪不明的心证中,此种情形下由于预先分配好的证明责任并没有转移,原来承担证明责任的人将败诉.

"彭宇案"一审中的反证.在"彭宇案"一审中,当法官做出了"彭宇撞倒了原告"的推定事实后,彭宇提供了证人陈二春的证言作为反证,其攻击的对象仅为推定事实.由于陈二春并没有看到原告徐老太太摔倒的经过,其证言不能证明徐老太因何摔倒,所以彭宇提供的反证不足以攻击推定事实,法官最后认定推定事实为真,判决彭宇承担部分赔偿责任.

Conclusion
在人们特别是网民对"彭宇案"一审判决书展开感性批判时,学者们也对其展开了理性批判(对"彭宇案"一审判决书展开理性批判的学者有:季卫东、张卫平、张继成等..更有法理学者从推理的角度,详细论证该"判决书是打着'逻辑推理'的旗帜反逻辑",[21]而我们诉讼法学者更为关心的是该案法官充分发挥了主观能动性去努力追求案件事实,而他的辛勤付出没有得到人们的认可反而招致人们的反感甚至痛骂的内因,关心法官适用事实推定错误的实质所在,关心事实推定的制度价值,关心本案事实推定误用对社会生活的巨大消极塑造.在诉讼中必须慎用既具有价值优势又具有危险性的事实推定.对事实推定的慎用主要体现在诉讼中必须对事实推定的适用条件予以尊重,否则发挥主观能动性的事实推定只能给社会带来灾难,"彭宇案"就是一个很好的反面教材.当以事实推定来追求案件事实的路径阻塞,事实推定的适用条件不具备时,我们只能适用证明责任来裁判案件,这是充分发挥人类主观性努力仍不能发现案件事实而被迫采取的妥协,但是从另一个角度来讲,这种妥协同样体现一种理性.




Notes:
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