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A Study On The Distribution Rules Of Burden Of Proof

Posted on:2014-04-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:Q R HuFull Text:PDF
GTID:1106330434973144Subject:Procedural Law
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For a long time, academic researches more focus on objective burden of proof and the allocation of such burden but ignore the research on rules regarding allocation of the burden of proof in the specific proven activities, focus too much on logic speculative theory but not on the technical enforcement to transform theory into practice. The fixation on the allocation of burden of proof results in that in practice, it is overly emphasized on submitting and proving evidence by the party who bear the burden. The judge only know "who advocates, who presents evidence", without realizing "who opposes, who presents" will also occur in certain situation.The burden of proof referred to herein, refers to a party in the litigation process, should provide evidence to prove his argument, otherwise he should bear the adverse consequences if such argument fails. This concept is not the same as the traditional subjective burden of proof, because the latter is dependent on the objective burden of proof. Regarding a particular fact, from the beginning to the completion of the case, the subjective burden of proof is borne by the same party, and apply the same and single proofing standard as the objective burden of proof. Under such structure of theory, the burden of proof necessary to a "de facto state", and there is no significance on the specification. It mainly concerns the "proven results" rather than the prove process. The burden of proof defined herein is added with elements of the practice and it will change with the process of the proceedings as well as the fact that whether the other party has discharged the burden of proof to the front stage. Therefore, the burden of proof discussed in this essay, on the one hand, focusing on the regulatory responsibility of the behavior of the parties in the proceedings, and on the other hand is aiming at increase the efficiency of the trial by specializing the arguing point regarding the alleged facts. On this basis, the allocation rules of burden of proof discussed in this article are that, under the basic guidelines of "who advocates, who present the proof," by indentifying the allegation and arguing points, both parties shall, focusing on such arguing points, under the requests on the relevant proofing standards, through certain proof ing method, following the litigation sequences, carry out put to the prove and gradually carry out the litigation. During the process of allocating the burden of prove, Judge shall timely full explain and sufficiently ensure parties’opportunities to attack and defense, to achieve the realization the burden of proof is duly allocated. The judge achieves the recognition on facts of case by realization of the burden of proof by the parties; parties through the implementation of the burden of proof continue to expose the truth of the facts of the case. The burden of proof allocation rules not only regulate the proofing activities of the parties, but also the regulating the evaluation activities of the evidence by judges. So it has significant theoretical and practical value.The establishment of the burden of proof allocation rules depends on the improvement on the relevant system in the litigation process, or the system itself is integral part of the rules of the burden of proof allocation. The basic system of the burden of proof allocation rules include the allegation, the arguing points, the way of probation, the standard of proof and the judge’s elucidation. Advocates to enter into the field of distribution of the burden of proof should be proper. Qualified allegation should conform to the requirements of specific and probability. For plaintiff, it shall be consistent and for defendant, it shall be importance. Of course, there are some exceptions for special matters. Only qualified advocates can form a proper arguing points, only proper burden of proof has the need to be proven. The so-called proper arguing points should have the elements of arguing points, including clarity, exclusivity, effectiveness and consultative. The judge has a strong organization skills to accurately understand the logic of the arguing points, and its mobility and levels so that the aim and target for the burden of proof is clear. Parties have to provide evidence or makes full illustration, complemented by logical reasoning and explain effectively to discharge the burden. Whether the party’s burden of proof is perform successfully, whether the other party takes on the burden of proof, the measure of the scale is the standard of proof. The establishment of the standard of proof should be determined based on the special features of the matters to be proven. In the civil action, the standard of proof is preponderant evidence, but the standard of proof can be increased or decreased based on the consideration from substantive and procedural perspectives, Whether the recognition of the establishment of a proposition or arguing points, the collaborative dialogue between the parties and the judge’s timely elucidation are inseparable. In the course of the implementation of the distribution of the burden of proof, the judge elucidation makes allocation of the burden of proof be orderly, efficient progressed, and the procedural and substantive interests of the parties can be fully protected. The establishment of allegation, the recognition of arguing points, proper ways of adducing evidences and reasonable construction of the burden of proof standard are the substantive systems of the burden of proof allocation rules, and the judge elucidation is the procedural system throughout the allocation of the burden of proof.If the allegation, arguing points, ways of adducing evidences, the standard of burden of proof and the judge explanation constitute the "fresh" of the burden of proof allocation rules, while the procedural arrangements constitute the "body" of the burden of proof allocation rules. The burden of proof allocation procedures include the establishment of the overall goal of the allocation of the burden of proof in pre-trial proceedings. That is the procedures for establishing the overall arguing points of the case, which is part of the arguing points organization procedures. The total claims of advocates by indictment should be raised and proved by the plaintiff, then the defendant replied it. A total target allocation of the burden of proof is established on the basis of parties’ proposition. In the proceedings of the trial, the parties first repeat the process of the establishment of total arguing points in the pre-trial procedures and make the case of total arguing points clear. The dependant first bear the burden of proof. Both sides take turn to makes allegation and adduce evidence to promote and deepen the litigation. The distribution of the burden of proof appear the trait as the arguing points layered stage dynamic characteristics. In the process of advancing the arguments and adducing evidences, the parties make the equal confrontation and achieve the neutrality of the judge’s ruling. As there are different requirements of the standard of proof to the arguing points for the fact with different features and characteristics, the allocation of the burden of proof on the arguing points will be presented to accelerate or decelerate. According to the different circumstances of the violation of the burden of proof allocation rules, there are different ways of remedies as the appeal, contesting the claims or retrial.The foresaid establishment on the burden of proof allocation rules are typical in civil actions, in criminal proceedings, due to the imbalance between the positions of the parties, the seriousness of the matter to be proven and the difference on the standard of proof, there are some particularity on the burden of proof allocation rules. Regarding the institutional arrangement, the conviction facts and aggravating sentencing facts should be proved beyond a reasonable doubt standard in criminal litigations. The defendant does not undertake to prove that he was guilty, but has the burden of proof for relevant allegation to defense or refute the advocate, just to achieve the preponderance of the evidence, or give rise to a reasonable doubt. To protect the rights of defendants and prevent a miscarriage of justice in criminal proceedings, there are higher claims and the burden of proof to the prosecution and lower requirements of allegation and the burden of proof to the defendant."The life of the law is practice", the important value of the theoretical research is to apply. How to improve and build our burden of proof allocation rules is an important purpose of this article. Relevant legislation of the burden of proof is simple and thin, and the confusion of the defining to the burden of proof also led to the confusion of judicial practice on the burden of proof allocation. If there are no system of safeguards and procedures regulation on the burden of proof allocation, it will cause the authority and consistency of the laws being damaged due to the different results for the similar cases. It will also become a powerful tool of judicial corruption, capricious and arbitrary. To make the meaning of the burden of proof and the burden of proof allocation clear, establish certain rules of arguing points, improve the system of the proof standard and let the judge exercise the rights of elucidation properly, it will make allocation of the burden of proof to have "legal basis". As to establish the overall goal of the burden of proof allocation in the pre-trial proceeding, build up the rules for organizing arguing points before trial. One party who bears the burden of proof firstly put to the proof to achieve the standard of proof, then the burden of proof switched, the other party makes allegation and put to the proof. The both parties advocate and furnish evidence one by one. It should give both sides equal confrontation procedural safeguards and justify allocation of the burden of proof. It is necessary to be established in the form of legislation of the burden of proof allocation rules. Of course, merely laws itself is not sufficient to enforce, the effective functioning of the burden of proof allocation rules need changing the concept of traditional litigation, the establishment of the the parties procedural safeguards concept and the principles of modern litigation such as principles of Direct Verbal and concentrating hearing, as well as ancillary litigation system to be enriched, such as the parties’ evidence collection system, the effective judge discretion and lawyer service.
Keywords/Search Tags:the burden of proof, the allocation of the burden of proofprocedural rules
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