On the civil burden of proof on the distribution system

Keywords: allocation of the burden of proof, probability that the allocation of the burden of proof standard, Legislation

Summary: the allocation of the burden of proof is the core of the Civil burden of proof issue, but also the Civil burden of proof theory in the most contentious issues. Theorists of international Civil allocation of the burden of proof There are many theories. China's Civil Procedure, the burden of proof the allocation of responsibility to implement, "who advocates, who the burden of proof," the general principles and practice of the pArticular case, the principle of burden of proof, the court investigating and collecting evidence of the principle of complementarity and bear the burden of proof can not be determined, by the people's court according to the principles of fairness and integrity comprehensive of the pArties to such factors as the burden of proof to bear the burden of proof of principle of China's distribution of the burden of proof for Civil still some problems to be further improved in the legislation.



Introduction

Civil burden of proof of the distribution system is the core issue of the civil rules of evidence, the burden of proof of the claim of their own pArties must provide evidence that they will bear the consequences of losing in this case, the fairness of the allocation of the burden of proof, the scientific , will directly affect the success or failure of the pArties to litigation, the pArties have a direct impact on the trust of our litigation system, which affects the entire judicial system's credibility. the allocation of the burden of proof, is in accordance with certain standards, the fact that different legal elements of proof responsibility between the parties prior to distribution so that one part of the plaintiff on the fact that the burden of proof, the fact that defendant to another part of the burden of proof. Broadly speaking, the allocation of the burden of proof includes both legislators in the legislation of the burden of proof distribution, including the judges in adjudicating cases, the specific circumstances of the case between the parties in the allocation of the burden of proof.

Unlike criminal proceedings, civil litigation, civil litigation activities as proof of the fact that the main object of the legal elements of the complex and diverse, including the rise to legal relations, change, eliminate such facts. The plaintiff is a party to proceedings should first afford the burden of proof, but the fact that if all elements are imposed on the plaintiff's burden of proof, so that the plaintiff bear the full burden of proof, will inevitably bring about the plaintiff, the defendant's legal status imbalance problem. Therefore, fairness and efficiency considerations, the burden of proof needed to study the distribution system. the allocation of the burden of proof is related to the plaintiff and the defendant in the prosecution and defense in which the elements when the need to advocate the fact that, as well as in the event of a dispute the facts on which party should The first evidence to prove so, in litigation before, we must look for certain standard theory, the burden of proof standard assigned to the parties here. science in civil justice in the allocation of the burden of proof between the parties, the need legislators and legal scholars for a full range of thinking, to make more rational judgments and choices.

A foreign key on the allocation of the burden of proof theory

The reasonable allocation of the burden of proof, both to the Law of substantive justice can be achieved in the proceedings, but also related to the ability to build an efficient proceedings, which makes the allocation of the burden of proof in a civil litigation system has a high degree of evidence theoretical and practical value of the problem, while it is an extremely complex and challenging problem since Roman years, it has been under the attention of scholars and judges, its study has never been interrupted. continuing to explore the formation of the allocation of the burden of proof of the doctrine of which there are three main theories:

First, the classification that the alleged facts which focuses on the fact that nature itself, that is, whether the alleged facts may be proved and the proof of the degree of difficulty to share the burden of proof. The fact that is further divided into negative and the outside world, said the fact that two, the former advocating active facts that (referring to the fact that there are advocates, the fact that the parties have taken place the burden of proof, and argue that the negative facts (referring to the fact that there is no claim, the fact that the parties did not occur assumes the burden of proof. after the fact can be held liable No person by facial features to be observed from the outside, sure, the fact that the alleged facts into the outside world and the fact that within the industry, the fact is easy to prove that the outside world, so the claim should bear the burden of proof, the fact that within the sector can not be directly perceived from the outside, very difficult to prove, so the idea of ​​people live the burden of proof.

Second, the regulatory classification of said focus on the substantive Law of the said provisions, the provisions of substantive Law from the analysis of sum distribution of the burden of proof in the principle of substantive Law to say that the principles and provisions usually have exceptions, where the requirements of the provisions of the applicable principles people should only be provided on the principle elements of the existence of the fact that the burden of proof, without proof of the fact that the elements of exceptions does not exist, the fact that exceptions to the elements advocated by the other party and the burden of proof.

Third, the legal elements of classification that which is legal according to the provisions of substantive Law elements of the fact that different types of shared burden of proof which focused on the fact that the relationship with the substantive law to the facts in the substantive law on the different effects caused by sharing the burden of proof as standards. there are several legal elements of classification that doctrine, which the mainstream theory of Rosenberg and special elements of the specification that says.

After 60 years of the 20th century, some German scholars of the legal status of living through the elements of classification, said that a reflection and criticism, they have made some new theories, trying to replace or amend the legal elements of classification that these new theories are:

(1) Dangerous area said that the alleged facts that are based on which party controls the area of ​​risk as the standard to determine the allocation of the burden of proof, that the parties should be beyond the control of their areas of risk in the fact that the burden of proof, such as in tort litigation, cause damage, subjective fault against the person are beyond the control of dangerous areas, so it should be by the people not against a causal relationship between the subjective burden of proof on the no-fault.

(2 probability that. Probability that the possibility of the said claim to the alleged facts occurred probability level, as a share of the burden of proof basis. That when the facts in the authenticity of an unknown state, as according to statistics or the people's life experience, The fact that the probability of occurrence is high, the parties claim the facts occurred assumes the burden of proof, and by the other party did not occur to the fact that the burden of proof.

(3 damage attributable to that which advocates a substantive law that established the principle of attribution or damage attributable to the allocation of the burden of proof standard that all provisions of substantive law by comparison, analysis, find out the substantive law on the issue of damages attributable to a principle, then the substantive law shall be liable according to the party the burden of proof.

Above theory, I was inclined to favor in Germany, Japan and Taiwan, China said the long-term residence status through the national and regional courts and the legal elements of the actual use of that classification as the main criteria for allocation of the burden of proof.

Second, China's current allocation of the burden of proof in civil proceedings the principles and problems of

1. "Who advocates, who the burden of proof" principle, which is our burden of proof in civil proceedings in the allocation of general principle. In China <<Civil Law>> Article 64, first paragraph: "The parties put forward their own ideas, responsibility to provide evidence. "theorists according to which the provisions of the allocation of the burden of proof Definition of" who advocates, who proof "that the plaintiff's claim for themselves, has the responsibility to adduce evidence to prove that the defendant put forward their own ideas, there are responsibility to provide evidence that the third person put forward their own ideas, have a responsibility to provide evidence. I believe that this sector said the burden of proof does not really solve the allocation problem, because it does not touch on what the parties shall each bear the burden of proof and the fact that their respective claims in the proceedings which should be the fact that the substantive issue. and so can not resolve the Definition of authenticity of the fact that the judge how to judge when an unknown problem. the allocation of the burden of proof is the civil system in the difficult issues of evidence, To date, scholars from various countries made a lot of research on this issue, although different opinions, but for guiding the allocation of the burden of proof is common, regard the plaintiff, the defendant the burden of proof should be basically balanced, fair and conducive to law and justice , in line with the principle of economic action as a guiding principle.

2. "Reverse burden of proof" principle, which is our burden of proof in civil proceedings in the special allocation principle, the burden of proof by the defendant. Be noted that: China's current <<civil law>> does not require this principle in only in the Supreme Court <<on the application of 'PRC Civil Procedure Law "number of views," and our <<>>,<< Supreme Court on Civil Law Civil Evidence requirements>> in for a few kinds of infringement cases set up this special burden of proof allocation rules. the burden of proof reversed, is the general principle of the burden of proof necessary to add exceptions and, where applicable, should pay attention to the following questions:

First, we must grasp the scope of burden of proof, there must be clear legal provisions and judicial interpretation before the Supreme Court specifically applied, not arbitrarily expand the scope of application.

Second, the burden of proof to correctly grasp the contents in the applicable burden of proof cases, the parties bear the burden of proof to prove no fault of their own or the victim is at fault for the content.

Third, if the damage occurred as a result by the number of responsible person, the responsible person wants to waive civil liability, should prove no fault or the fault of the victim has for the main burden of proof is sometimes one, sometimes co-litigants.

3. Parties share the burden of proof the court, providing evidence of the parties responsible, according to the "who advocates, who the burden of proof," the general rules of evidence, the burden of proof shall be by the advocates of the parties to provide facts of the case, but sometimes due to objective reasons, for example, some cases the parties need to state agencies, companies, individuals, etc. investigation, collect evidence, involving national secrets, commercial secrets, personal privacy, etc., the party is difficult to investigate, collect evidence, in this case, the court requires application of the parties and the hearing of cases need to take the initiative to investigate, collect evidence, the parties share the burden of proof. China <<Civil Law>> Article 64 paragraph states: the parties and their legal counsel due to objective reasons can not collect their own evidence, or people's court considers the evidence needed to hear cases, the people's court should be collected in the survey. People's Court in certain circumstances can investigate and collect evidence, which to some extent, the parties share equal to the burden of proof. <<Supreme Court on the evidence of certain provisions of Civil Procedure>> Article XV, seventeen pairs of surveys to collect evidence in court The scope of the regulations. The problem is some of the judges ignored the application of the parties, often no time to investigate shirk.

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4. Discretion of the judge assigned the burden of proof. Individual case is more complicated, the burden of proof in cases of unknown people's court judges follow the law's basic spirit and philosophy of justice and judicial experience and rational logic according to the special case of these discretionary allocation burden of proof, which is the statutory burden of proof allocation rules as an exception and necessary complement. <<Supreme Court on the evidence of certain provisions of Civil Procedure>> Article VII: The law does not specify, in accordance with these provisions and other judicial interpretation to bear the burden of proof can not be determined when the people's court according to the principle of fairness and good faith, comprehensive ability of the parties the burden of proof and other factors to bear the burden of proof of the problem is some of the quality of judges is not high, not just in science between the parties distribution of the burden of proof, leading some parties though justified, but the burden of proof can not and lost.

Third, China's civil action on improving the distribution system to think the burden of proof

Burden of proof in our experience is quite rough in for a long period of time, the burden of proof has been misunderstood as merely the party's responsibility to provide evidence to the court, which makes our burden of proof of academic research lags far behind Germany, Japan and other countries. I believe that the allocation of the burden of proof in civil proceedings in the national commonality and regularity issues in China's civil action, the theory should be the introduction of foreign mature, successful absorption of foreign experience.

I believe that our allocation of the burden of proof in civil proceedings should be the main criteria are:

1. Who advocate the right or legal relationship exists between the parties, only have rights or legal relations of the particular elements of the fact (such as contract, establish a will, there is the fact that such an infringement liability the burden of proof, right or impede the fact that the legal relations (If the perpetrator is no corresponding capacity for civil conduct, fraud, coercion, etc. As a general element is the fact that, by denying the existence of rights or legal relationship to the other party the burden of proof.

2. Who advocate the right to have occurred, or change or eliminate the legal relationship of the parties, only there to change or eliminate the fact that the special elements (such as changes to the contract supplemental agreement to modify a will, the debt burden of proof of such exemption, the fact that the existence of general elements denied by the other party to change or eliminate the burden of proof.

Allocation of the burden of proof in accordance with the above criteria, in most cases have access to fair and reasonable result, with a general validity, but inevitably there will be few and departure from the requirements of fairness and justice exceptions. I believe that these standards need further improvement .

First, when the Supreme Court of substantive law or judicial interpretation of the allocation of the burden of proof has made clear that these provisions and allocation of the burden of proof according to the standard result is inconsistent, according to the provisions of law or judicial interpretation to determine the allocation of the burden of proof. For example, in the product caused by manufacturing method patent patent infringement litigation, according to the legal elements of classification criteria for allocation of the burden of proof that the defendant used the plaintiff's patent method, is produce a special relationship between the elements of tort law the fact that the burden of proof by the plaintiff responsibility, but evidence of bias in the legislature to consider a special case, that the method used in the production of evidence entirely under the control of the defendant, the plaintiff is no evidence in the state, it provides the defendant should not use the patented process for manufacturing the burden of proof. This is based on the substantive law provisions of the allocation of the burden of proof standard sound typical example.

Second, when the allocation of the burden of proof according to the standard results with the values ​​of fairness and justice when a serious conflict, should consider other theories put forward to improve the standard example, in the environment due to pollution caused by an action for damages, according to the legal elements of classification allocation of the burden of proof that the result of damage to the plaintiff to be the fact that violations of environmental law and a causal relationship between the burden of proof, but in the current technology, a causal link is often difficult to prove conclusively the question, coupled with The plaintiff usually can not get by the defendant of possession of pollution-related technical information, therefore, should refer to the areas of risk that the probability that, and damages attributable to that in the protection of the principle of cause and effect relationship between the burden of proof vest to complete, by the defendant there is no causal relationship burden of proof. Again, if a party intentionally obstruct each other's acts evidence, the burden of proof the other party can not effectively collect and provide evidence, then it should be based on the principle of good faith allocation of the burden of proof burden of proof to prevent a party parties.

Third, based on contractual burden of proof to be perfect. The burden of proof contract is in litigation before the parties entered into on specific elements of legal acts in the burden of proof in the fact that the burden of the agreement. The burden of proof with the substantive law and procedural law, the dual property, and dispose of in accordance with the principle of private autonomy principle, as long as the contract is not with laws or judicial interpretations contravene the provisions of the burden of proof, the court should respect the parties to the arrangement, so the burden of proof covenant that the burden of proof and legal requirements that the distribution of results is inconsistent, the contract should be agreed upon allocation of the burden of proof.

Modern sense of the burden of proof allocation rules can be traced back to Roman times, when the allocation of the burden of proof on two major principles to follow, one for "the plaintiff bears the burden of proof obligation", and the second is "proof that ideas exist in person, does not exist in the denial of the people. "Later scholars have established the distribution of the burden of proof on a variety of theories, the burden of proof on the country's distribution system is concerned, in general terms, because our system is affected by the civil law tradition countries, coupled with the legal elements of classification theory in the major civil law countries the practice has been tested for quite some time, although there are some flaws in some respects, but it is after all the burden of proof allocation of Roman law in modern society, the inevitable outcome of the development We should be combined with China's specific national conditions, the allocation of the burden of proof on the continued research and innovation system, make it better and more effectively pursued by the law to achieve justice.




Notes:
{1} Jiang Wei. Civil law principle [M]. Beijing: China Renmin University Press, 1999. {2} Tan Bing, Xiao Jianhua. Civil Procedure Law [M]. Beijing: Law Press, 2004. {3} Wu Tong Wu Li, Han Hongjun. Civil Procedure Law [M]. Beijing: Law Press, 2006 {4} Shi Changqing Zheng Ying. Civil Law Guide [M]. Beijing: Peking University Press, 2004. {5} Guo Jieping. On the sharing of the burden of proof in civil litigation system [J]. The rule of law and society, 2007, (2) {6} Liu Bing, Huang Pingping. Civil burden of proof on the principle of distribution of research [J]. Learning and exploration, 2005, (4) {7} when Hongxia. Burden of proof of [J]. Plains Journal, 2004, (4). {8} Wu Qingping. On the civil burden of proof in [J]. Sun Yat-sen University Essays, 2005, (6).

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