On Allocating The Burden Of Proof In Civil Litigation

Allotment of the burden of proof is one of the key systems of civil litigation,whose purpose is mainly to solve the problem that when a case cannot be proved asauthentic or bogus, how the judge adjudicate it. Hence, no matter continental lawsystem or Anglo-American law system, they attach importance on the study and use ofthis institution. However, because of the influence of the traditional judicial idea, it hasnot been paid enough attention in our country After the reform of the way of trial, thestatus of this system becomes more and more important by strengthening the litigant'sburden of proof, but there appears chaos of allotment of the burden of proof in practice,because the theoretical preparation is insufficient and legislation is not perfect, whichrespectively manifest in that: the study of this problem is not so concentrated,multi-series of theories state their own advantages and disadvantage; there are lack ofthe anaiysis of the basic theory and the concrete pratical operation level and thoughthere are provisions in the first section of Civil Procedural Law, the provisions are toogeneral to be competent to meet the need of complex situations in litigation. In view ofthis, the author of this paper puts forward the though about the reconstruction ofallotment system of the burden of proof in our country by means of genealogical andvalue analysis of allotment of the burden of proofThis paper is divided into three parts, including introduction, body and conclusion.The introduction briefly introduces the system value and the history of allotmentof the burden of proof, discusses the necessity of studying this problem in the presentsituation of our counny and raises the train of thought of this paper.The body includes three sections: allotment of the burden of proof of the two lawsystems; the basic requirement of allotment of the burden of proof; analysis andreconstruction of allotment of the burden of proof in our countryThe first section is the investigation of allotment of the burden of proof of the twolaw systems. It takes the law system as the thread and investigates allotment of theburden of proof according to the successive order various theories aPPeared puttingemPhasis on analyzing the content and basis of these theories. The sole investigatiOn ofthe successive order that various theories erperged indicates that both of the two lawsystems allot the burden of proof from seeldng the unified allotment rules to sthessingthe allotment according to virtual basis. Through comPedng the two law systems, thecontinental law system does not deviate legal requirement classification basically, it isjust the revision of legal requirement theory The Anglo-American law systemcomPletely adoPt5 interest balance theory The reason for the aPPearance of thedivergence lies in the difference of thch legal thechng ways.The second section is on the basic requirement of the allotment of the burden ofproof This section lays pwhcular emPhasis on analyzing the factors of value behindthe rules mentioned in the first sechon frOm the angle Qf legal pndosoPhy It ho1ds theview that vedous rules of the allotInent of thefburden of ProOf are conshtUted on certainvalue requirementS, which incude substantiai and PTocedural requirements. Thesubstaniai requirement maiIily refers to the stable of law and the realization ofsubstanhal purpose and policy SQ that adjudication closes to authenticity in maximum;the procedural requirement includes procedural justice, procedurl benefit and goodfaith doctrine. These requirements are discussed in detail in the paPer. Certainly, thereexist certain differences in the value requirement that various allotment of the burden ofproof embody respectively and this paPer points out the reason of causing theemergence of these differences.The third section is the analysis and reconsmiction of the'allotment of the burdenof proof in our country. Ana1ysis takes the basis requi...