Principle of Official
The principle of official acts according to its mission, without being related to the parties’ proposal, so it is the opposite of the direction of availability. The principle of officiality is based on Article 42/2 of the Constitution and Article 6 of the K.E.D.Nj. Article 4 K.P.C. provides that “The court takes care of the regular conduct of the judicial process.” In this respect, the court uses its activity to ensure the parties a fair and orderly legal process. This procedural decision-making activity has a managerial character, leading the process, to ensure the debate of any evidence, to ensure that no one in the process loses procedural rights and avoids any attempt of the parties to make the strategy impossible.
The court has an active role in all the development of a standard and fair legal process. Consequently, it has an active role in seeking, obtaining, gathering evidence for the veracity of procedural facts, as well as all those facts on which the entirety depends. Judicial activity. The parties can prove the legal-procedural facts without which we would not have a fair trial as these depend on the elements of due process. Still, these facts can also be proven by the court itself as long as it has an active role in guaranteeing due process.
Burden of proof
The burden of proof or in other words, the burden of proof is the determination of the subject (party) in the civil litigation that must prove an alleged fact. It is closely related to the principle of disposition, which means that the court must base its decision only on the parties’ evidence at the hearing. The civil process mechanism is built on the facts which are the power of the parties and the right which is the power of the court and on this mechanism are made the rights and obligations that the parties and the court have.
Only the parties can set the court in a motion to initiate legal proceedings unless the law provides otherwise. The initiating parties are obliged to present before the court their allegations, the facts of these allegations and the evidence on these facts or their rebuttals. The role of the court is to establish the existence of the facts presented by the parties, assesses whether the evidence is convincing and makes their proper legal qualification. The parties’ obligation to prove their facts and allegations in the proceedings or as the doctrine is called the burden of proof is related to the principle of disposition The ecourt’s role of the accusatory nature in civil proceedings.
The burden of proof and assessed in Article 12 K.P.C. which expressly states that “The party claiming a right has the obligation, by the law, to prove the facts on which it bases its claim.” The claims of the party must be by the law. The parties must fulfil this obligation, as this is one of the most basic procedural obligations in the proof process burden.
Right without proof is nothing and what cannot be proved is the same as what does not exist. He who claims himself a creditor must prove the existence of an obligation as he can have neither a creditor nor a debtor without first having an obligation relationship between them. The exercise of the creditor’s right and his judicial protection may not be enabled if the creditor cannot prove his right.
The function of the burden of proof is otherwise called the impulse function. The basis of all this function is that the person who is an interested party falls and the burden of proof and this burden must be carried by him to achieve a positive result in his favour. The impulse function instructs chronologically that the process of proving initiates with the parties’ initiative, which is the dispositive phase and continues with the stage where the court examines and evaluates the evidence obtained by the parties, which is called evaluative aza.
The burden of proof in civil proceedings stimulates the interested party to assert the right correctly he claims and the legal facts and valid his right in the process. The proposal of the means of proof and the initiative to start the process belongs to the parties but to the extent and limits that the court allows and considers that they are acceptable for the disputed facts’ veracity. The court’s decision is based only on the evidence presented at the parties’ hearing; this rule is provided by the disposition principle, which is closely related to the management of the burden of proof.