On Distribution Of Burden Of Proof Concerning Juristic Act Implements The Pinciple Of Private Autonomy

In the “general practical argument” or “legal argument”, the burden of proof onlyconstitutes a procedural argument rules. Although all the modern doctrines of burdenof proof recognize the substantive law nature of burden of proof, they have not yetclarified the value basis of the distribution of burden of proof. Therefore, from thepoint of view of the basic principle of civil law, the discussion about the distributionof burden of proof on juristic act is of great significance to the transformation ofresearch approach.Public autonomy presents as “normative autonomy”, while private autonomy,which is based on “ethic man”, takes the form of “practical autonomy”. At the sametime, as the basic principle of civil law, private autonomy condenses to be a kind ofsubstantive legal thought in positive law. It must be concretized by the concept of“juristic act with function” and “burden of proof with function”. Only in this way, itsnormative significance can be demonstrated.The common theory maintains that juristic act is a conceptual tool to implementprivate autonomy. However, from the perspective of jurisprudent methodology,implementing private autonomy by juristic act should be confined in the situation of“when the fact is liquet”, that is, in the situation of “when the fact of the disputedjuristic act is liquet”.When the fact is non liquet, the judge can not confirm whether the disputedjuristic acts exist or not. In this case he can’t make traditional legal reasoning, whichleads to the norm order on juristic act of positive law can’t be concreted in individualcases. That is to say, when the fact is non liquet, the judge can’t implement theprinciple of private autonomy only with juristic act. In fact, when the fact is nonliquet, the judge must rely on the concept of burden of proof to complete legalreasoning. Therefore, from the perspective of jurisprudent methodology, we mustimplement the principle of private autonomy by the distribution of burden of proof onjuristic act.The burden of proof in private law refers to the objective burden of proof. For thebasis of its distribution, the dominate theory thinks that it relies on the “proceduraleprinciple”, which considers that the specific distribution of burden of proof isdepended on language structure of the norms of positive law. While the recent theory holds that the substantive basis for the distribution of burden of proof is based on“procedure principle”, such as pinciple of probability、pinciple of danger field and soon. However, in view of the fact that burden of proof is a institution of substantive law,we should discuss the value basis of the distribution of burden of proof from theperspective of “substantive principle”. According to the analysis of the “concept ofburden of proof with function”, we can know that the burden of proof does not haveits own specific function and its function affiliated to the function of relevant systems.Thus, the value basis of the burden of proof is the basic principle of civil law; thefunction of the burden of proof on juristic act affiliated to the function of juristic act,that is to say, implementing the principle of private autonomy.The relationship between two different means of implementing the principle ofprivate autonomy prominently reflected in the problem of confusing the boundarybetween the judgment on burden of proof and the interpretation of juristic act.Obviously, the applicable condition of the judgment on burden of proof is that the factof the disputed juristic acts is non liquet. While the fact of the disputed juristic acts isliquet, judges are obligated to interpret the disputed juristic acts. Thereby, we shouldprevent judges treating the situation when they must interpret the juristic acts as thesituation when the fact is non liquet.Both the constitutive requirements and the special validity requirements ofjuristic act belong to the “norm for generation of right”. But the generally validityrequirements of juristic act are the “requirements of elimination of validity”, which inreality belong to “norm for elimination of right”. The party who takes a legallitigation according to the juristic act is only required to prove the existence ofconstitutive requirements of the juristic act. On the other side, the adversary shouldprove “requirements of elimination of validity” of the juristic act. As the result ofrespectively providing different burden of proof for the constitutive requirements andthe validity requirements of juristic act, we can say that distinguishing theconstitutive requirements of juristic act from the validity requirements of juristic actis able to reflect the difference between private autonomy and state control.The essential terms of juristic act belong to the “norm for generation of right”.Concerning the non-essential terms, if the party who takes a legal litigation accordingto the juristic act advocates the existence of non-essential term, then, this non-essential term is also required for the generation of rights. If the adversary advocatesthe existence of non-essential term, then, this non-essential term is the precondition of the “relative norm”. The different distribution of burden of proof on the essentialand non-essential terms of the juristic acts follows the legal policy consideration ofpositive law, which is the “general and exceptional” arrangement in the legal policy.And with such legal policy consideration, it is easier to implement the principle ofprivate autonomy.