| The burden reduction theory appears when the continental law system has developed to a certain period,which in order to deal with the problem of proof in the current judicial practice.For a long time,the theory of distribution of burden of proof based on the theory of "classification of legal elements",which can be said that it is based on the mutual conversion of the roles of the parties as the original and the defendant and the balance of the power balance in the litigation.However,with the increasing progress of human civilization,the development of science and technology and the large scale of social industrial structure,while it bringing more wealth and convenience to daily life,it has also caused a series of serious problems.These problems are reflected in civil litigation,which are usually manifested a significant increase in the number of cases involving the product quality tort litigation,environmental tort litigation and medical malpractice litigation and other types of cases,and the formation of so-called "modern litigation".In this kind of litigation,the roles of the parties infringing and being infringed are fixed as early as in the social structure,and there is almost no possibility of interchange.It is the loss of the possibility of role exchange that leads to the unequal status of litigation between the original and the defendant and the difference of the ability of evidence collection,thus closing the remedy of the victim.At this time,if the general principle of burden of proof is still applied mechanically,and the plaintiff who bears the burden of proof in substantive law is required to bear the adverse consequences of the failure of proof,which may lead to the conflict between the judgment result and substantive justice.Therefore,under the premise of maintaining the general principle of burden of proof,it is of great significance for the current judicial practice to try to develop some procedural techniques which can lighten the burden of proof of the parties and to be supported by corresponding theories.From the perspective of burden of proof and evidence collection,this paper discussed the connotation,jurisprudence and methods of burden of proof reduction along the two main lines of "mitigation and change of the subject of proof" and "expansion of the means of collecting evidence by the parties".In addition to the introduction,this article was divided into seven chapters.Chapter 1:The connotation and jurisprudence of reduction of burden of proof.It is generally believed that the reduction of burden of proof is reduced to make up for the inherent defects of the traditional principle of burden of proof and to make the judgment result more in line with the substantive justice of the case.This idea originates from the civil law system,which mainly aims at the difficult to prove in the lawsuit,and reduces the difficulty of proving one party by adopting reasonable legal technique or alternative method,which in order to solve the litigants in the litigation difficult to prove the problem.Reduction of burden of proof is not actually a statutory system,in a sense,it is a concept developed through legal interpretation and practical experience.Therefore,before launching the relevant discussion,it is necessary to first clarify why the system itself exists,that is,to prove the legal basis of lightening the burden.This chapter started from the problem of "the emergence and solution of the difficult problem of proof in litigation",while comparing and analyzing the related concepts at home and abroad,it defined the connotation of burden of proof lightening,and on this basis,according to the principle of equality of arms,the principle of good faith and the theory of the guarantee of the right of proof,this paper analyzed the legal basis for lightening the burden of proof.Chapter 2:Reduction of burden of proof in the burden of proof perspective.Theoretically,the reduction of burden of proof is not closely related to the burden of proof problem,while focusing on the application of the general principle may ignore the destruction of substantive justice caused by the particularity of the case,and when there are some special factors,the principle of the allocation of the general burden of proof is permitted to be contradicted.However,the problem is that the reduction of burden of proof is,after all,the pursuit of substantive justice at the expense of a certain degree of legal stability.If the theoretical framework of the burden of proof is completely set aside,it may become the reason for the judge to act wantonly to prove the law of responsibility in the case,which ultimately undermine the stability of the legal process.Therefore,the search for ways to reduce the burden of proof within the framework of the burden of proof does not mean that the concept of burden of proof is no longer useful.On the contrary,the reduction of burden of proof is in fact based on the recognition of the burden of proof and its role of allocation rules,the evaluation of proof and the exhaustion of free evidence.This chapter elaborated the theory of burden of proof and its distribution principle in civil litigation of two legal systems in detail,and combined the present situation of theory and the problems in judicial practice in our country,and try to find ways to lighten the burden of proof from the perspective of burden of proof.Chapter 3:Obligation to explain the case and reduction of burden of proof.As an effective means to lighten the burden of proof of the parties,the:obligation to explain the case has always been an important system in civil litigation in the countries of the continental law system.Its function is to present an obligation to prove a certain amount of evidence by one of the responsible parties,which in order to make up for the lack of the burden of proof in the litigation,to reduce the burden of proof judgment in the case of the application,so as to protect the substantive justice of the outcome of the judgment.From the viewpoint of onus probandi,the obligation to explain the case does not change the distribution of the burden of proof,but on the basis of the principles of "evidentiary agreement obligation","obligation of promoting litigation","obligation of truth and obligation of completeness" and so on,it mphasize the assistance of one party in providing evidence to ease the burden of proof.Although there is no reference to this concept in the civil procedure law of our country,through several legislative amendments,the application of the obligation to explain the case has appeared in the judicial practice.This chapter analyzed the basic content of the obligation to explain the case,the constitutive requirements,legal consequences and other issues,and on this basis put forward suggestions to improve the relevant legislation in China.Chapter 4:Apparent proof and reduction of burden of proof.Apparent proof is a special means of proof,and its particularity is as follows:Under the premise that the rule of experience has a high degree of inevitability,a certain fact can be directly identified without careful proof,thus to reduce the difficulty of proving.Especially when proving the essential facts of "fault" or "causality",it plays an irreplaceable role.It can be seen that the function of apparent proof is to lighten the burden of proof of the parties,and the result is neither by redistributing the burden of proof nor by lowering the standard of proof,but it is realized by changing the subject of proof-------changing the subject of proof from the facts of the elements to the facts of other relevance.Because the proof of the relevant facts is easier than that of the essential facts,it has the effect of lightening the burden of proof for the parties concerned.Based on the theory of civil law system,this chapter discussed the nature,elements,legal consequences and other questions of apparent proof,which in order to improve the relevant legislation of civil litigation in China.Chapter 5:Reduction of burden of proof in evidence collection perspective..Evidence is the basis of litigation,only on the basis of sufficient evidence,the parties can effectively prove the facts they claim.In a sense,whether the parties have sufficient means of collecting evidence is the key factor to determine the success or failure of litigation.However,while the legislation of our country emphasizes the burden of proof of the parties,it does not give the parties sufficient means to collect evidence,which leads to the disconnection between the party's ability to prove and the burden of proof.,and bear too much burden of proof..This situation is clearly contrary to the purpose of civil proceedings.Therefore,in order to reduce the burden of proof of the parties,to achieve the purpose of properly resolving disputes,legislation should give the parties sufficient means to collect evidence on the basis of recognizing their status as the subject of proof..Based on the current situation of evidence collection in China,this chapter examined the systems of expanding the means of collecting evidence in common law system and civil law system,and on this basis,the paper discussed the mode and method of evidence collection in civil litigation in China.Chapter 6:Proof obstruction and reduction of burden of proof.From the perspective of evidence collection,endowing the parties with adequate means of collecting evidence is the premise to guarantee their right of proof and make the proceedings go on smoothly.But on the other hand,there are often situations in practice that:One party destroys or loses the key evidence in the action intentionally or negligently,which leads to the permanent inability of the other party to present or use the specific evidence.At this point,even if the means of collecting evidence given to the parties by law are more adequate,the parties will also be unable to use the evidence and face the consequences of failure in the end.If the existence of such an act is allowed to exist,the right to collect evidence of the parties will actually become a kind of right display,and the result is tantamount to a disguised increase in the burden of proof of the parties.The purpose of proof obstruction system is to guarantee the integrity of the party's power to collect evidence by imposing appropriate sanctions on such obstruction of evidence.Although it is a negative safeguard,it is also not to be ignored the role of proof obstruction in reducing the burden of proof of the parties and safeguarding the equality of litigation status between the two parties.This chapter combed the theoretical development of proof obstruction,and focused on the legal basis of this system and the constituent elements,and put forward specific suggestions to improve the legislation of our country on this basis.Chapter 7:Typological application of reduction of burden of proof.The problem of the parties' difficulty in proving evidence is especially obvious in the so-called modern litigation.Take medical damages lawsuit and environmental tort litigation as examples:In the lawsuit of medical damages,it is difficult for the patients to prove whether the medical institution's behavior is negligent or not,which because of the difference between the two parties in the aspects of evidence collection ability,professional knowledge and so on;While in the environmental tort litigation,it is also because of the difference of litigation status between the two parties,the plaintiff will also be unable to prove in the face of such important facts as "causality".Therefore,how to reduce the burden of proof on these matters by the plaintiff is an effective way to overcome the problem of "proof difficult" in litigation actually.This chapter summarized the above two types of cases in the distribution of the particularity of the burden of proof,specifically discussed the burden of proof in this kind of cases,which in order to provide a useful reference for our future judicial practice. |
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