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On The System Of The Burden Of Proof In Labor Dispute Lawsuit

Posted on:2014-02-23Degree:DoctorType:Dissertation
Country:ChinaCandidate:B YangFull Text:PDF
GTID:1226330425480144Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The burden of proof is an essential part of the civil procedure. It is also quite essential inthe Labor Dispute Lawsuit. The Rosenberg’s Rules theory has been recognized as the mostsuitable theory about the assignment of the burden of proof in the civil procedure. Theemployees will be ordered to submit some evidence that he can hardly get according to theRosenberg’s Rules. This phenomenon can be called “difficulty to submit evidence”. If thecourt make a judgment and ignore the difficulty to submit evidence, the judgment would beharmful to the employees’ rights. The modern employment law and labor law have imposed alarge number of obligations on the employers. The employers’ failure to perform anobligation will be harmful to the employees’ right. The employees usually have to bring a suitagainst their employers in order to make them perform the obligation. And the burden ofproof is very important for them to win a lawsuit. From here we see that the difficulty tosubmit evidence must be discussed under the research of the burden of proof. As a result,scholars both in the field of labor law and civil procedure begin to pay close attention to theburden of proof in the labor dispute lawsuit. Many theories such as“inversion of the wholecase”,“conformation in terms of case type”, and “certification of division of obligation” havebeen introduced to this field.Most scholars believe that the labor relationship has the characteristics of equality andsubordination. The characteristics of subordination means that the employer has the right tooperate the whole enterprise include the workers. The employee must obey their employer’sorders. The employers usually produce and preserve the evidences which are quite importantfor the lawsuit that could be involved in the future. The employees are quite hopeless aboutthis because the employers are more powerful than them. The Rosenberg’s Rules fail toconcern the characteristics of subordination. It can only be used in the common civilprocedure without the characteristics of subordination. We have to pay close attention to thedifficulty to submit evidence. It means that the labor disputes should be divided to differenttypes. Each type had the different assignment of the burden of proof. And the facts whichneed to be proved also should be discussed before using Rosenberg’s Rules. That could behelpful to the difficulty of submit evidence. As a result, we should pay attention to the different types of cases and the different facts which need to be proved as well. This opinionis quite irrational. It will be very hard to divide the cases to different types. To discuss thefacts which need to be proved is also useless because it can not come to a conclusion which isoperational in the practice.The difficulty to submit evidence can be involved by many reasons. To alternate theburden of proof is not the most reasonable answer to this problem. The first reason that lead tothe difficulty to submit evidence is that the fact which need to be prove is too complex to beproved, such as fault and causality in the field of tort law. The second reason is that theevidence is under the control of the employers. The third reason is that the evidence has neverbeen produced. The second reason and the third reason are very common in the labor disputelawsuit. The spoliation of evidence can be very helpful for the second reason. Alternate theburden of proof is unnecessary. But the spoliation of evidence and the alternation of theburden of proof can not deal with the difficulty to submit evidence if the evidence had neverbeen produced. The employer can not submit the evidence that never exist. And thealternation of the burden of proof is unfair because the employer is hard to prove the factwithout evidence. The second reason is also very common in the practice of the labor disputelawsuit in China. We the scholars should pay more attention to this phenomenon and look fornew filed to discuss.The system of burden of proof consisted of the assignment of the burden of proof and thelightening of the burden of proof. The assignment of the burden of proof is related to theburden of producing evidence and the lightening of the burden of proof is related to theburden of persuasion. The assignment of the burden of proof and the lightening of the burdenof proof are the two perspectives in the research of the burden of proof in the labor disputelawsuit. In the perspective of the assignment of the burden of proof, we should use theRosenberg’s Rules. The statutes about the assignment of the burden of proof confirmed theRosenberg’s Rules. Many opinions which opposed Rosenberg’s Rules often hadmisunderstandings about those rules. By using the Rosenberg’s Rules, the employees couldalso be difficult to submit evidence, but this difficulty cannot be solved by alternate theburden of proof. The lightening of the burden of proof, such as the decline of the standard ofproof and the spoliation of evidence, can solve this problem. The spoliation of evidence canbe found in the statutes. It can be very useful for the employee to submit the evidence whichis under the control of the employer. The decline of the standard of proof should be discussed in this essay. The court had already used this theory to lighten the burden of proof in the labordispute. In some cases, the employee was unable to submit labor contract because this paperhad never been produced. For this reason, the court tried to use the way of decline of thestandard of proof. But this theory should be more discussed by scholars.The decline of the standard of proof is very useful to solve the problem. It is beneficial toboth employers and employees. The employees should submit evidence in order to win thelawsuit. But the difficulty to submit evidence gets remission by the decline of the standard ofproof. Here we should introduce the concept of “the obligation to produce evidence”. Thisconcept can improve the predictability of the decline of the standard of proof. The employershave been asked to produce and preserve evidences that can be submitted in the future by thelaws and statutes. These evidences include but not limited to labor contract, name list of allemployees, and so on. Labor contract is a relational contract which has a long period forperformance. The employers should see that the labor dispute is inevitable in the future.Evidence is very important for every lawsuit. The employers can and should produce andpreserve evidence for the lawsuit in the future. For this reason, the employers must complywith their duty to produce evidence and preserve the evidence for the lawsuit in the future. Ifthe employers failed to do this, and the employees had difficulty to submit the evidence, thecourt should lighten the burden of the proof to help the employees, which means the declineof the standard of proof.The correspondence of certification of inversion of responsibility and the decrease of thestandard of certification have led us to a right way to deal with the labor dispute lawsuit. Thefirst step of dealing with a labor dispute lawsuit is to apply Rosenberg’s Rules in the field ofthe assignment of the burden of proof. The employees should submit evidence to the court inorder to win the lawsuit according to Rosenberg’s Rules. When the employees had difficultyto submit evidence, the second step was to find the reason to this difficulty. If the reason wasthat the evidence was kept by employers, we could order the employers to submit theevidence according to the theory of the spoliation of evidence. If the evidence had never beenproduce and the employers fail to comply with their duty to produce evidence, we could applythe theory of the decline of the standard of proof. And the standard of proof could be calledpreponderance of probability.There are six chapters in this essay. Chapter I discussed the elements and characteristicsof the labor relationship. There is an affinity between those elements and characteristics and the opinions about the assignment of the burden of proof. By analyzing those opinions, wecould see that the problem is that they never paid attention to the field that beyond theassignment of the burden of proof. Chapter II discussed the two different perspectives of theresearch. Both the assignment of the burden of proof and the lightening of the burden of proofwere very essential to this matter. Chapter III mainly discussed the Rosenberg’s Rules. Itcame to the conclusion that he Rosenberg’s Rules could be used in the labor dispute lawsuit.The spoliation of evidence and the decline of the standard of proof could solve theemployees’ problem. Chapter V and chapter VI discussed the lightening of the burden ofproof. And discuss the concept of ‘the obligation to produce evidence’. If the employers failedto produce and preserve evidence according to the obligation to produce evidence, the courtcould change the standard of proof in order to help the employees. This part was theinnovation in this essay. Chapter VII was the conclusion of this essay. It discussed theassignment of the burden of proof and the lightening of the burden of proof in the legalpractice and provided some advices for the legislation.
Keywords/Search Tags:The Procedure of Labor Dispute, The Assignment of the Burden ofProof, The Lightening of the Burden of Proof, The Duty to Produce Evidence, TheDecline of the Standard of Proof, The Spoliation of Evidence, Difficulty to Proof
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