Burden Of Proof In Legal Discussion And Empirical Assessment

The facts determined by the court are just the historical facts of the past. In order to ensure the objectivity and the fairness of judgment, the determination of facts is not purely a subjective understanding by the court, which instead has to make reasonable determination based on the"rules of evidence."When the facts presented by the party concerned are controversial, they are called the facts to be testified or the targets of evidence in a lawsuit. And when the party concerned presents the facts which are advantageous to himself/herself, he/she is obliged to produce evidence to prove the authenticity of those facts. This is also called the burden of proof. When the party concerned cannot fulfill the burden of proof or the evidence produced cannot prove the authenticity of the facts presented, he/she has to bear the risk of being defeated in a court decision. This is implying to the true essence of the saying,"Where the proof is, why the defeat is."The saying,"Where the burden of proof is, why the defeat is,"is not merely a common legal saying, but also the one which has long extensively spread all over the world. However, should the burden of proof belong to the realm of proceedings law, or the realm of substantiative law? Although there have been arguments over this question, it is currently inclined to think that the burden of proof should possess the procedural and substantiative characteristics. Its application, extensive effects, numerous arguments and multiple theories are really the issues that are worthy of investigation most. The court has no right to refuse any judgment–– this is a principle well-recognized by all the countries of the world. The mission of civil procedure is to determine the facts and the applicable laws through the procedural justice, and then make a court decision. As to how to ascertain the facts and apply correct laws, all what can be relied on is evidence. In a lawsuit, evidence should be employed to prove the facts. The lack of proving means always make the facts fall into an unclearness between the truth and the falsehood even if the court and the party concerned have tried all possible means to investigate the truth. Despite this, the court, being the final dispute-solving body, should not still let the dispute exist and make no judgment at all. It implies that the court should not let the prepared laws lie idle and refuse to make judgment, and should not take the reason of unclear relationship among the facts and refuse to make judgment. In civil procedure, disregarding how the court makes judgment, there must be one party having received disadvantages, and relatively, the other party has received advantages. Therefore, when the relationship between the truth and the falsehood is objectively still unclear finally, which party concerned should bear the disadvantages of the unclear facts would be a question of the burden of proof.By comparing and investigating the systems relating to the civil burden of proof between the countries of the continental legal system (Japan, Germany) and the countries of the British and American legal system (United States, United Kingdom), this paper finds that the distribution of the burden of proof in Mainland China and Taiwan is still incomplete and needs to be improved and strengthened. Thus, this paper refers to the burden of proof in Germany, Japan, United Kingdom, United States, Mainland China and Taiwan, as well as the critical analyses on the distribution of the burden of proof, intending to find out the characteristics and difference among them. Furthermore, through the investigation of legal principles, analysis of academic principles and the practical verification, the paper finally hopes to acquire a distribution of the burden of proof which is suitable for application in both Mainland China and Taiwan, and then expects good prospects for the development of a sound system of the burden of proof.Between the sections of Introduction and Conclusions, the paper is divided into four chapters.Introduction: This section mainly indicates the importance of the system of the burden of proof as well as the necessity of presenting evidence in solving civil disputes, such as the distribution of the burden of proof, mitigation of the burden of proof, reversal of the burden of proof, and so on. These are where the meanings of the research topic and the practices are.Chapter 1 roughly discusses and reviews the concept, legal nature and regulatory contents of the burden of proof. First of all, this chapter makes a detailed description on the meaning of studying the burden of proof, objective burden of proof and subjective burden of proof, double meanings of behavioral responsibility and outcome responsibility, legal-natured theories, etc. After that, the chapter analyzes and investigates the regulations, contents and system of the burden of proof in four regions, including the countries of the continental legal system (Japan, Germany), the countries of the British and American legal system (United States, United Kingdom), Mainland and Taiwan. The analysis and investigation help us understand and figure out the development background and legislative spirit of the theories of the burden of proof in these regions.Chapter 2 talks about the distribution of the burden of proof. The essence of this chapter is just the largest part of the study. Regarding the distribution of the burden of proof, the countries of the continental legal system and the countries of the British and American legal system have their respective theories and practical opinions on the distribution of the burden of proof. For example, the countries of the British and American legal system particularly emphasize that different proving standards can be formulated according to different civil cases. This is completely different from the criminal cases as they have to reach the extent of no reasonable doubt. These countries also advocate the allegations of favorable proof, which are gradually acceptable to the countries or regions of the continental legal system. Besides, there are traceable tracks of their common application to judicial practices. For example, the countries of the continental legal system divide the burden of proof into the subjective burden of proof and the objective burden of proof. Such division is similar to the division into the burden of proof and the burden of persuasion proposed by the countries of the British and American legal system. This is helpful to the investigation of the international trends. In addition, this paper makes an in-depth critical analysis on the uniqueness of the legal regulations, academic principles and practices of the distribution of the burden of proof. The common characteristic of proceedings law between Mainland China and Taiwan is that the burden of proof is stipulated in explicit terms in the proceedings law. This act is not found in Germany, Japan, United Kingdom, United States, and so on. Since the distribution rules of the burden of proof are a highly argumentative problem between the civil substantiative law and the civil procedural law, it is rare for its general rules to be formulated on the legislative examples with explicit terms stipulated. Hence, they are established and developed through theories and practices. Moreover, there are a lot of observation angles on the distribution rules of the burden of proof, and it is still difficult to declare that there exists one theory which is applicable to all the countries of the world. Even though the related theories in Germany had gone through arguments for a century and more and the arguments will be incessant continuously, the discussions of this chapter are very meaningful.Chapter 3 discusses about the mitigation of the burden of proof. In Taiwan it has been years to have developed and applied the mitigation of the burden of proof. It is generally claimed that when undergoing the mitigation of the burden of proof, people should carefully examine whether there exist the factors considered in the dangerous domain theory, equal weapon principles, fidelity principles or probability theory. If it is thought that to whom the burden of proof belongs should be based on the general regulations of the distribution of the burden of proof, and if the party concerned belongs to the one who cannot be expected, then it is necessary for the court to make adjustment.Chapter 4 analyzes the theoretical foundation and the trial practices of the reversal of the burden of proof in Mainland China, and then compares and discusses about their controversial problems. Generally speaking, the determination of reversal is judge's presentation of the free judgment right on the procedural law and evidence law. The standards for the determination of reversal are the presentation of fairness and justice, and the consistence with the objectives of legislation. Chapter 5 concludes the contents of the paper. This section briefly summarizes the overall ideas and the most important viewpoints of the paper.