Probability and conviction: Irreconcilable concepts or two sides of the same coin? A comparative analysis of the standard of proof in civil matters.

摘要

This thesis questions the widespread proposition that the civilian standard of proof in civil matters is considerably higher than the corresponding standard in the Common Law. Instead, it is argued here that the "odd differences" in the formulae employed to describe it "are merely a matter of words".;Conceptually, both legal traditions combine the subjective element of a belief in the truth with the objective requirement of warrant for this belief in the evidence presented. The trier's belief that a certain statement is true has to be reasonably inferable from the evidence. In both traditions the standard is not fixed in the sense that it depends on a variety of factors relevant to the specific case, such as whether evidence is amply available, or whether only testimonial evidence can be adduced.;This approach to the standard of proof is also followed by the Principles and Rules for Transnational Civil Procedure developed in 2002 by the American Law Institute (ALI) and UNIDROIT. Their treatment of the standard of proof appears to be a synthesis of the Common and Civil Law approaches.