1 is not critical.

Two examples

Who should own a gold bracelet?

-the application of "probability" proof standard in civil litigation

Gong Xinyuan

I. The case

Plaintiff Pan and defendant Lin are fellow villagers and have known each other for more than ten years. Both of them are drivers of the same transportation company. One day in February 2002, the plaintiff found that the gold bracelet worn by the defendant was very similar to that lost in 2000, and asked the defendant to return it, but the defendant refused. The plaintiff then reported the case to the public security organ on the grounds that the defendant had stolen his bracelet. After the public security organ filed a case for investigation, the defendant said that the plaintiff had lost the bracelet for one or two years, but insisted that the bracelet was bought for himself. The public security organ then took bail pending trial measures against Lin. Because there is no evidence to prove that Lin has committed theft, he was released on bail after the expiration. The plaintiff then filed a civil lawsuit with the court on the grounds of the defendant's infringement, demanding that the defendant return the gold bracelet.

The plaintiff claimed that the gold bracelet was purchased from Macau Tiansheng Jewelry Co., Ltd. at the beginning of 1998, and asked the goldsmith to cut off several links and weld them again. The defendant claimed that the gold bracelet was purchased by his client from Chow Tai Fook Macau or Zhou Shengsheng Jewelry and Gold Store on 1992. 1994, because the bracelet was too long, he asked the goldsmith to round every link of the bracelet to shorten its length, and it was never cut short except that the S button was broken and welded.

In order to prove the ownership of the gold bracelet, both parties provided evidence respectively. The evidences provided by the plaintiff are: the invoice for the purchase of gold bracelets from Tiansheng Jewelry Store in Macau on June 1 day, 1998+ 10/day. The weight of the bracelet is 5 cents in 8 yuan, the unit price is 297 Hong Kong dollars, and the manual fee is 120 yuan, which is 2644 yuan. 2.1photo of the plaintiff wearing a gold bracelet at a party with friends on September 6, 999; 3. Goldsmith Xiong's written testimony proves that he cut one or two rings from the plaintiff's gold bracelet at the tail number of 1998, processed them into gold rings and re-welded them. The defendant provided Huang's written testimony to prove that the defendant entrusted others to buy a gold bracelet weighing about 50 cents in 7 yuan from Macau on 1992; 4. The written testimony of Yang and Liu proves that the defendant wore a gold bracelet during the joint operation of the brick factory from June 6, 2004 to July 6, 2004.

According to the characteristics of the bracelet stated by both parties, with the consent of both parties, the court of first instance entrusted Beijing Huaxia Material Evidence Appraisal Center to appraise the bracelet, and the conclusion was: 1, and the gold mark on the bracelet submitted for inspection could not be confirmed; 2. The first and second adjacent links at the O end of the bracelet submitted for inspection did not form obvious welding marks during the whole manufacturing process; 3. No welding trace after fracture was found in the S buckle of the bracelet submitted for inspection; 4. No trace of rounding was found in each link of the bracelet submitted for inspection; 5. The brand of the bracelet submitted for inspection cannot be confirmed, and the weight is 26. 735 0.002 g, so it is impossible to confirm its service year.

Second, the referee

The court of first instance held that the case was a property ownership dispute, and both parties stated the characteristics of the bracelet. According to the appraisal conclusion, the defendant claimed that "because the bracelet is too long, the goldsmith is required to round all the links of the bracelet to shorten its length, and it has never been cut short except for S-buckle welding", which is inconsistent with items 2, 3 and 4 of the appraisal conclusion; Items 2 and 3 of the appraisal conclusion are consistent with the plaintiff's statement that the bracelet was cut short and welded; The bracelet in item 5 weighs 26 pounds. 735 0.002g (equivalent to 7. 129 yuan RMB from Macau) is lighter than 8.5 yuan RMB recorded in the bracelet invoice provided by the plaintiff, which is consistent with the plaintiff's claim that the bracelet was cut short. Based on the analysis of the above characteristics, combined with the bracelet invoices and photos provided by the plaintiff, and the evidence that the defendant said that the plaintiff had lost the bracelet for one or two years when asked by the public security organ, the disputed bracelet was presumed to be owned by the plaintiff according to the principle of probability. On this basis, the court of first instance ordered the defendant to return the bracelet to the plaintiff, and the defendant appealed, and the court of second instance upheld the original judgment.

Third, evaluation

The uniqueness of this case lies in: firstly, the plaintiff reported the case to the public security organ on the grounds that the defendant stole his bracelet. After criminal investigation, the public security organ released the defendant from bail pending trial because there was no evidence to prove that the defendant had stolen the bracelet, and the plaintiff turned to civil litigation to claim property rights; Second, the plaintiff has no direct evidence to prove that the disputed bracelet is his own, which was picked up by the defendant or obtained by other means. The court of first and second instance adopts the standard of proof of probability, and presumes that the bracelet belongs to the plaintiff.

The so-called "probability" proof standard, also known as evidence superiority standard, means that if the proof standard, that is, the possibility or reliability of the facts to be proved is set within the range of 0- 100%, the standard with 50% (excluding 50%)-70% is called probability, and the standard with 7 1%-90% is called height. This standard is widely used in civil litigation in countries with two legal systems. The meaning of the probability proof standard expressed by the British court in relevant cases is: "Based on the overall consideration of the evidence, the fact judge must be able to claim that the applicant's claim has shown that its possibility of existence is greater than its possibility of non-existence. If the probability advocated by both parties is equal, that is, the fact judge as a whole cannot weigh, then the party with the burden of proof loses. " Professor Morgan of the American Model Evidence Drafting Committee explained it this way: "Any party responsible for persuasion in a specific existence must establish its existence with the advantage of evidence. Judges usually explain that the advantage of evidence has nothing to do with the number of witnesses or evidence, but the advantage of evidence lies in persuasiveness. Sometimes it is suggested to the jury that their hearts are like a balance, and the evidence of both sides is placed on its left and right balance, so as to weigh which side has greater weight. " Japan's Supreme Court 1958 judgment pointed out that "the proof in litigation is different from the theoretical proof made by natural science workers based on experiments, and it is a historical proof. The goal of theoretical proof is' truth', which is different from historical proof as long as it has' high probability'. In other words, it is necessary to determine the truth to the extent that ordinary people no longer doubt it and prove it. For theoretical proof, at the scientific level at that time, there was no room for disproof, while historical proof, as a proof in litigation, left room for disproof. " Article 73 of the Supreme Court's Provisions on Evidence stipulates: "If two parties adduce evidence to the contrary on the same fact, but there is no sufficient basis to deny the evidence of the other party, the people's court shall, in combination with the circumstances of the case, judge whether the evidence provided by one party is significantly more probative than that provided by the other party, and confirm the evidence with greater probative force." This provision is also the embodiment of the standard of probability proof. It can be seen that the proof standard of "probability" is actually a selection standard made by comparing two possibilities. When the judge thinks that the possibility of establishing a claim is greater than the possibility of not establishing it, it should be presumed that the claim is established.

Different from the proof standard of "probability" in civil proceedings, the two legal systems countries adopt the proof standard of "excluding reasonable doubt" in criminal proceedings. As for the meaning of "excluding reasonable doubt", the Supreme Court of Canada once made a famous explanation: "As the name implies, reasonable doubt is precisely doubt based on rationality, that is, doubt based on logical reasoning process. This is not imaginary doubt, nor is it based on sympathy or prejudice. It is a kind of doubt, that is, you ask yourself' why should I doubt', and you can give a logical reason by answering this question. This logical reason can refer to reasons related to evidence, including contradictions expressed after considering the evidence of the whole case, or reasons related to the lack of some evidence, which is a prerequisite for conviction in this case. " The concept of "reasonable doubt" in California Criminal Law is defined as: "It is not just a possible doubt, but refers to the state of the case. After a general comparison and consideration of all the evidence, the mental state of the jurors is such that they can't say that they feel that they have reached the level of inner conviction in reaching a permanent ruling on the truth of the alleged crime. " It can be seen that according to the proof standard of "excluding reasonable doubt", when there is reasonable and logical doubt about the guilty evidence accused by the prosecution, the referee should make an explanation and presumption in favor of the defendant. This is a standard of proof that conforms to the principle of "presumption of innocence" in criminal law.

Specific to this case, there are several possibilities for defendant Lin to hold the bracelet: 1, which was originally purchased by the defendant; 2. It was originally owned by the plaintiff and stolen by the defendant; 3. It was originally owned by the plaintiff and picked up by the defendant; 4. Originally owned by the plaintiff, but stolen or picked up by others and sold or given to the defendant. Therefore, if the public security organ wants to prove that the defendant Lin stole the bracelet, it must rule out the doubts of the above three possibilities: 1, 3 and 4, which is logical and rational. Obviously, these reasonable doubts cannot be ruled out by the evidence collected by the public security organs in the investigation stage. Even if the public security organs identify the characteristics of the bracelet, they can only draw the conclusion that the bracelet is most likely owned by the plaintiff, but can't draw the conclusion that the bracelet was stolen by the defendant. However, in civil litigation, the situation is different. From the comparison and analysis of the appraisal conclusion and the statements of the two sides on the characteristics of the bracelet, the plaintiff's statement on the characteristics of the bracelet is roughly consistent with the appraisal conclusion, but completely inconsistent with the defendant's statement. Combined with the invoice and photos of the bracelet provided by the plaintiff and the evidence that the defendant claimed that the plaintiff lost the bracelet for one or two years when asked by the public security organ, the judge can draw such a judgment: the probative force of the evidence provided by the plaintiff is obviously better than that of the defendant, and the possibility of the bracelet being owned by the plaintiff is obviously greater than that of the defendant; According to the proof standard of "probability", it can be presumed that the bracelet belongs to the plaintiff.

There are the following reasons why criminal proceedings and civil proceedings adopt different standards of proof:

First of all, the purpose of litigation is different. The main purpose of criminal proceedings is to punish crimes and protect innocent people from criminal investigation, which inevitably requires that the evidence accused by the prosecution can withstand the torture of "reasonable doubt", and only in this way can it be "not vain and not vertical". The purpose of civil litigation is to resolve disputes and stop disputes. When the truth is difficult to find out, "the judge shall not refuse the trial", and the judge is not a witness of the incident. Only by comparing the strength of the existing evidence can he make a judgment.

Secondly, the nature of litigation is different. Criminal proceedings generally involve depriving people of life, freedom, political rights or major economic interests. This is a serious matter, and once misjudged, it will have an irreparable impact on the defendant. In order to effectively protect the weak criminal suspects or defendants and minimize the rate of misjudged cases in criminal cases, it is necessary to set a higher standard of proof. Civil litigation only involves the general civil rights and interests of the parties, mainly property rights and interests. It is not necessary and usually impossible for civil litigation to adopt such a high standard of proof as criminal litigation.

Third, litigants have different ability to prove evidence. In criminal proceedings, the principle of public prosecution is based on state prosecution (except private prosecution). Procuratorial organs exercise procuratorial functions on behalf of the state. It has a huge investigation team and advanced equipment, and the means of investigation are strongly guaranteed by the state. The defendant can only be in a passive defense position with the help of defense lawyers, and the former obviously has an absolute advantage in providing evidence. In civil litigation, both parties have equal status and the same ability to prove, and it is fair and reasonable for both parties to decide the outcome with the advantage of evidence.