Det svenska kravet - en studie de lege feranda över beviskravet och bevisbördan i dispositiva tvistemål

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The purpose of this study is to discuss probability threshold and the burden of proof in dispositive litigation in Swedish law de lege feranda. The current evidentiary requirement in civil cases is considered to be proven or proven, which means a relatively high probability requirement. Regarding what is the prevailing main rule for the burden of proof prevails, disagreement within the doctrine where many different theories abound. The study proposes a new type of probability threshold and burden of proof, namely Edward K. Cheng's reconceptualized burden of proof. This probability threshold is based on looking at how the parties' versions relate to each other, where the version that is more probable compared to the other version is the one that the court must follow in its sentencing proceedings. The theories behind this proof requirement are the Bayesian method and the decision method, both of which are mathematical probability theories. By looking at basic principles of the dispositive dispute, such as the principle of the adversarial procedure, the disposition principle, the principle of free trial and the principle of immediacy, it is concluded that its purpose is that the dispositive dispute is a strongly party-dominated dispute and that the question of evidence consists entirely of how the parties have jointly defined it. The study argues that Cheng's reconceptualized burden of proof are much better adapted to this purpose and basic idea, than the prevailing probability threshold. Finally, it is argued that the reconceptualized burden of proof makes other theories regarding burden of proof completely irrelevant, but that there are times when these theories can be used arrive at modifications of the burden of proof.

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