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Burden of proof
Sudek, Matouš ; Macková, Alena (advisor) ; Pohl, Tomáš (referee)
Thesis title: Burden of proof The subject of the diploma thesis is the institute of the burden of proof, with emphasis on the manifestations of individual constitutive components of the burden of proof, especially in civil contentious declaratory proceedings. Attention is also paid to the concept of non liquet. The author deals with the comparison of the basic principles governing the contentious and non-contentious declaratory proceedings and the concepts, or institutes, inherently linked to the burden of proof. The third part of the thesis focuses on the institute of the burden of proof in other selected types of civil proceedings, as well as on the comparison of the institute of the objective burden of proof with the principle of in dubio pro reo governing criminal proceedings. The fourth chapter deals with the different forms in which the rules of the burden of proof are found in the Czech legal system - the basic rule of the burden of proof, which is not explicitly regulated in the Czech legal system, explicit statutory rules of the burden of proof, statutory rebuttable presumptions, as well as judicial development of the rules of the burden of proof. In relation to the last mentioned form, the thesis moves to the issue of the so- called reversal of the burden of proof. The possibility for the...
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Burden of proof in civil procedure
Loutchan, Petr ; Macková, Alena (advisor) ; Pohl, Tomáš (referee)
Thesis title: Burden of proof in civil procedure This paper deals with burden of proof. The aim of this thesis is to provide a broader framework for this burden, since it is absolutely crucial in order to form a proper understanding of this topic. The first chapter mentions principles that are common to all legal procedures and those that are applicable only within civil procedure. These general procedural principles need to be interpreted in accordance with the European Convention on Human Rights, which is binding upon Czech law. They also serve as a tool for a deeper integration of European law. The principles that are only applicable within civil procedure are usually presented in pairs consisting of principles of opposite meaning and are never really used in their pure form. The second chapter deals with basic rules of Evidence. It mentions the definition of Evidence, it makes a clear distinction between logical methods of proving and procedural ones, followed by definition of the purpose of Evidence. It also mentions topics that do not need to be proven, since there is some type of presumption governing these issues or they are somehow known to the court. This chapter emphasizes tools that simplify the process of proving. It also defines basic terms of Evidence. It does not try to be a complex...
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Evidence in civil proceedings (selected problems)
Zezulka, Ondřej ; Winterová, Alena (advisor) ; Smolík, Petr (referee)
The object of this master's degree thesis is to present a view of the evidence in civil proceedings. The document concerns the process of evidencing from both theoretical and practical point of view as it provides factual and material information which is crucial for the meritory decision of a court. The thesis is divided into three main chapters. There is also an introductory part situated in the very beginning of the paper which concerns the main reasons why the author chose this particular topic and describes overall importance for society. Furthermore, the thesis is ammended by a conclusion at the end of the paper. It comprises a subjective evaluation of the current legal basis and proposes possibilities of improvement of the Czech Civil Procedure Code. The first chapter focuses on the general description of the process of evidencing. It provides a legal definition of the concept of evidencing in connection with an explanation of other basic terms such as the subject of evidence, principles of evidence, a legal concentration etc. The role of the court, its main tasks and the level of maximum permitted initiative in civil proceedings are also taken into account. The second chapter concentrates on procedural obligations of the parties to litigation. Legislature imposes a certain procedural...
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Proving a negative
Škop, Miroslav ; Kühn, Zdeněk (advisor) ; Žák Krzyžanková, Katarzyna (referee)
This thesis deals with the subject of proving negatives, i. e. proving non-existence of an object, a status or a process. The author of the thesis provides the reader with the definition of a negative and with a list of negatives mentioned in the case law of Czech public authorities. Also, the author analyses selected case law of Czech courts and describes proving negatives in specific cases. The thesis is divided into six chapters. The first chapter provides the definition of a negative. In this chapter the author points out potential problems linked to the identification of a negative, especially to the difference between a fact, a negative statement and a legal assessment. The second one addresses the possibility of a negative becoming the subject of proving as a practical way of finding of facts. The chapter also brings a brief analysis of proving a negative abroad, specifically in Slovakia, the Great Britain and the United States of America. The third, the fourth and the fifth chapter deal with the subject of proving negatives in civil proceedings, administrative proceedings and criminal proceedings respectively. In each of these chapters the author summarises the principles of proving related to corresponding type of proceedings and demonstrates proving negatives on specific cases (regarding...
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Formal Burden of Proof of Public Prosecutor in Criminal Proceedings
Pudilová, Anežka ; Šelleng, Dalibor (referee)
The legal concept of formal burden of proof of public prosecutor has been discussed for more than 17 years of legislative work on the new Criminal Procedure Code and an increased attention was also paid to it before by the legal science, at the same time with the enforcement of adversary elements of court proceedings. The legal concept in question was established and developed as part of the Anglo-Saxon type of criminal proceedings where trial is based on a dispute between the parties. This involves the exclusive procedural responsibility of public prosecutor to clarify the facts relevant to the indictment filed. Although it is possible to give a brief description of the legal concept in question in a single sentence, its enactment would affect the overall nature of the proceedings before the court and would also be reflected in other stages of the criminal proceedings. The aim of the dissertation was to analyse the prerequisites and consequences of the enactment of the formal burden of proof of public prosecutor in the Czech criminal proceedings. Given the origin of the legal concept, the crucial question was whether its adoption would necessarily constitute a total departure from the legal principles which the existing Criminal Procedure Code is based on or whether it is possible and appropriate...
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Formal Burden of Proof of Public Prosecutor in Criminal Proceedings
Pudilová, Anežka ; Gřivna, Tomáš (advisor) ; Bohuslav, Lukáš (referee) ; Kalvodová, Věra (referee)
The legal concept of formal burden of proof of public prosecutor has been discussed for more than 17 years of legislative work on the new Criminal Procedure Code and an increased attention was also paid to it before by the legal science, at the same time with the enforcement of adversary elements of court proceedings. The legal concept in question was established and developed as part of the Anglo-Saxon type of criminal proceedings where trial is based on a dispute between the parties. This involves the exclusive procedural responsibility of public prosecutor to clarify the facts relevant to the indictment filed. Although it is possible to give a brief description of the legal concept in question in a single sentence, its enactment would affect the overall nature of the proceedings before the court and would also be reflected in other stages of the criminal proceedings. The aim of the dissertation was to analyse the prerequisites and consequences of the enactment of the formal burden of proof of public prosecutor in the Czech criminal proceedings. Given the origin of the legal concept, the crucial question was whether its adoption would necessarily constitute a total departure from the legal principles which the existing Criminal Procedure Code is based on or whether it is possible and appropriate...
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Proving a negative
Škop, Miroslav ; Kühn, Zdeněk (advisor) ; Žák Krzyžanková, Katarzyna (referee)
This thesis deals with the subject of proving negatives, i. e. proving non-existence of an object, a status or a process. The author of the thesis provides the reader with the definition of a negative and with a list of negatives mentioned in the case law of Czech public authorities. Also, the author analyses selected case law of Czech courts and describes proving negatives in specific cases. The thesis is divided into six chapters. The first chapter provides the definition of a negative. In this chapter the author points out potential problems linked to the identification of a negative, especially to the difference between a fact, a negative statement and a legal assessment. The second one addresses the possibility of a negative becoming the subject of proving as a practical way of finding of facts. The chapter also brings a brief analysis of proving a negative abroad, specifically in Slovakia, the Great Britain and the United States of America. The third, the fourth and the fifth chapter deal with the subject of proving negatives in civil proceedings, administrative proceedings and criminal proceedings respectively. In each of these chapters the author summarises the principles of proving related to corresponding type of proceedings and demonstrates proving negatives on specific cases (regarding...
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The burden of proof on the unlawful conduct of the health service provider
Slezáková, Alžběta ; Holčapek, Tomáš (advisor) ; Salač, Josef (referee)
The burden of proof on the unlawful conduct of the health service provider Abstract This thesis describes a burden of proof and the distribution of the burden of proof on the unlawful conduct of the health service provider between the parties to the dispute. Particular emphasis is put on cases in which patient as party burdened by the burden of proof is unable to prove unlawful conduct of the health service provider or other elements of the obligation to pay damages because the health service provider violated his obligation to properly maintain medical records. This thesis is composed of eight chapters. Chapter One is introductory and describes the civil liability which can arise out of the provision of health services. It presents cases of strict liability and also liability for fault. Chapter Two deals with the unlawful conduct of the health care service provider. Besides the general introduction, attention is paid to medical malpractice and other typical cases of unlawful conduct related to the provision of health services. Chapter Three examines other elements of the obligation to pay damages in cases of medical malpractice. Chapter Four deals with the procedural obligations of the parties to the dispute, especially with the duty of assertion and evidence and the burden of assertion. Chapter Five is...
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The burden of proof in the disputes for unjust enrichment
Dobrovičová, Michaela ; Pohl, Tomáš (advisor) ; Macková, Alena (referee)
1 The burden of proof in the disputes for unjust enrichment Abstract This diploma thesis deals with the institute of the burden of proof. Its aim is to analyse the distribution of the burden of proof in disputes for unjust enrichment. The thesis consists of an introduction, four main chapters, which are further internally divided and the conclusion. The introduction is focused mainly on the reasons of author's choice of the topic. The first chapter contains the general characteristics and interpretation of key concepts as well as related institutes, whose basic knowledge will be a key to other parts of the text. It explains the differences between the concepts of proof, counter-proof and objection. It then analyses the standard of proof needed to prove certain facts. It also describes the state of non liquet and analyses the individual procedural obligations and burdens of the parties. The subject of the second chapter of the thesis is the term of the burden of proof, which can be divided into the objective and subjective burden of proof. The subjective burden of proof can be further subdivided into the abstract and concrete burden of proof. The chapter goes on to analyse selected theories of distribution of the burden of proof, while not neglecting the negative theory of proof. In the partial conclusion,...
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Burden of proof in civil procedure
Hübnerová, Daniela ; Macková, Alena (advisor) ; Pohl, Tomáš (referee)
1 Abstract The title of the work: Burden of Proof in Civil Procedure The present diploma thesis deals with one of the few subjects, which are topical today, as in the past, in spite of all legislative changes - the burden of proof in the civil procedure. The burden of proof, which is the subject of this work, plays in the process of evidence an irreplaceable role, yet it is still a very underrated topic, which is not, in particular in legal theory, given appropriate attention. Legal theory is not too unified with regard to the burden of proof, the views of different authors on this institute differ. This is a very large, somewhat unclear issue. There are many theories regarding the functioning of the burden of proof and its distribution among the parties. The thesis does not claim to give an exhausting interpretation of this institute, as it is a very extensive issue, and its comprehensive processing would require at least the publication of a book, perhaps several books, but should outline the institute of the burden of proof and its function in the civil procedure. The burden of proof is not clearly defined in the legislation and the theory of burden of proof is very complicated and inconsistent, that is probably why there is a relatively extensive case-law of the courts, which increasingly emphasizes...
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