On The Burden Of Proof In Civil Procedure

The burden of proof is an ancient invention, some simple principles with profound impact about it has been existing since ancient Rome, although, at that time, the concept referred to the burden of producing evidence. The burden of proof is a brand-new concept, even its essence, which is the burden of risk, has been found for over one hundred years, but we cannot say it not new if we compare it with its history. About the burden of proof, the first question we have to answer is what is the burden of proof, furthermore, what it brings to us. The process of trying to find the answers to these questions deepens the understanding of the concept and helps to build the corresponding system. Because of the absence of the tradition of theory study and judicial practice of the burden of proof, we do not have enough understanding and consensus on the burden of proof both in theory and common sense, and we make many mistakes in the use of its concept. In a word, the theory and practice of the burden of proof in China is still in"its primary phase".According to the ongoing circumstances of theory and practice of the burden of proof in Chinese context, the dissertation sets objective of serving the Chinese theory, legislation and judicature of the burden of proof, takes the common theory of the burden of proof (the theory in civil law systems in particular) all over the world as references, studies the Chinese expression of the burden of proof and its reason, problem and limitation, and tries to find the answers to them. Besides the introduction and conclusion, the dissertation is divided into four chapters.The introduction is the demonstration of the subject and arrangement of the dissertation. The article is mainly about (of course, it is not limited to, and is not possibly limited to) the burden of proof in the Chinese context. But why make such a study? The reason is both an explanation of the necessity and function of the study made in the paper. The author divides the problem into several questions in the introduction, and analyses the questions one by one. These questions are: 1. Why choose the burden of proof as the subject? 2. Why set specific concept of the burden of proof? 3. Why select the Chinese context? Finally, the author explains the construction and arrangement of the dissertation, and takes this as a general demonstration of the logical thought.Chapter one is a description of the procedure of how the system of the burden of proof comes into being. By revealing its inner mechanism, the article set the concept of the burden of proof. In this part, the author explains the necessity of the existence of ambiguous fact, and how it becomes a problem in the systematic level, and how it challenges the syllogism in judicial trail. With further analyses, the author explains the way how the burden of proof overcomes trail difficulty of ambiguous fact with its special mechanism, how it pushes the development of the trail method, and the limitation of the burden of proof, and so on. And then, the author explains the concept of the burden of proof by examining its inner mechanism. So the concept reveals itself, as concept is nothing but an abstract summary and expression.Chapter two explains the dominating theory of the burden of going forward with evidence, this, in an opposite angle, explains under what condition the system of the burden of proof comes into being, and its potential hindering factors. If the explanation of the burden of proof stops at the positive point of view, like"what is the burden of proof", a remarkable problem cannot be explained, which is the burden of proof did not come into being until the end of the 19th century, and it is closely related to the problem of ambiguous fact, even today, we apt to use the concept more of the burden of producing evidence (it is more typical in China). This is a very important problem, but is overlooked by most the time. In this chapter, the author tries to make a theoretical summary and primary explanation about the factors, which support the burden of going forward with evidence but somehow obstruct the mechanism of the burden of proof in Chinese context.Chapter three focuses on the problem of normalized use of the terminology of the burden of proof in Chinese context. At the end of the 19th century, the dominating situation of the burden of going forward with evidence has been broken, the burden of proof, as a dual meaning theory both subjective and objective, has been thriving and enlarging its boundary. Since the 1980s, the theory takes the dominating position in our country. But as the dual meaning theory puts the obligation of action and the obligation of result under the same terminology, it causes lots of confusion. At least, it is an outstanding problem in China, and it must be solved. The author explains from the request of clarifying the theory, scientific legislation, and the judicial practices, the burden of proof must be separated from the dual meaning theory of the burden of going forward with evidence in the sense of the use of terminology, and seek its independence of concept and terminology.Chapter four is an examination of the concept and inner mechanism of the reversion of the burden of proof. In the layer of more specific distribution of the burden of proof, the author explains the mechanism of the burden of proof, furthermore, improve the knowledge of the mechanism of the burden of proof (this is more meaningful in the Chinese context). From the precondition of the reversion of the burden of proof coming into being, step by step, the author explains the problems as the reason why the burden of proof is reversed, the operating logic of the reversion of the burden of proof, and the misuse of the reversion of the burden of proof in practice. Together with the article 7 in the"Rules on Civil Evidence", which regulate the discretion right in the distribution of the burden of proof, the author makes critical examination from the perspective of the legislation, the party and the judge, putting forward clearly the viewpoint that the discretion right in the distribution of the burden of proof should be suspended.In the conclusion, the author summarizes the overall theoretical ordering and the core viewpoint of the dissertation, and points out some areas, such as the theoretical research, judicial practice, legislation technology and research method of the burden of proof, requires further research, which is the research direction of the author's further study.