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Talk About The Distribution Of Burden Of Proof In The Civil Action

Posted on:2004-04-08Degree:MasterType:Thesis
Country:ChinaCandidate:H B LuFull Text:PDF
GTID:2156360122465630Subject:Law
Abstract/Summary:PDF Full Text Request
This text makes a start with a brief analysis of the meaning and interreaction of the burden of proof and the distribution of burden of proof to invite a discussion of the theory and practice of choice of the burden of proof and the distribution of burden of proof. The thesis has seek the origin and development of burden of proof, and it has narrated the theory about the distribution of burden of proof in detail in such modern countries as Germany, Japan, Great Britain and U.S.A., etc., and it has carried on the research and discussion in the theory and practice about the distribution of burden of proof in our country. Because of a serious misunderstanding about the concept and function of burden of proof, the policies and regulations about civil action have never drawn attention to the question of burden of proof, and in civil justice practice, it shifts the burden of proof to the party according to the principle" who advocates, who puts to the proof". " Civil Procedure Law of the People's Republic of China " of 1982 (tried) makes stipulations about the distribution of burden of proof for the first time. But it can't solve the problem of the distribution of burden of proof just with the regulation " The party who puts forward the rights oneself has a responsibility for producing evidence ", it is not until " Several Regulations about the Civil Action Evidence of the Supreme People's Court " (announced in December of 2001 and emplemented in April 2002) was issued that the problem was solved. The author thinks, the distribution of burden ofproof is a question common and regular in lawsuits of various countries, so it is not necessary to pursue some distinct Chinese characteristics seriously, to research some theory and standard quite extraordinary, we should introduce ripe foreign theories, absorb the successful experience with a practical attitude. As to the choice of the theories about the distribution of burden of proof in the continental legal system or British-American legal system, we should adopt the Die Normentheorie of Leo Rosenberg in the continental legal system, and study other theories of the distribution of burden of proof (such as Gefahrenkreistheorie). The thesis has analysed a concrete case with that theory at last.
Keywords/Search Tags:Burden of Proof, The Distribution of Burden of Proof, Origin and Development, Contemporary Theories, Theory and Practice in Our Country
PDF Full Text Request
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