On The Allocation Burden Of Proof In Civil Lawsuit

Burden of proof is the ridge beam of litigation", this proverb shows vividly the importance of burden of proof. Because the allocation of burden of proof decides directly the result of a law suit, a research on burden of proof has an important significance theoretically and realistically. Based on the situations of our country, the article do a research on the allocation of burden of proof in civil litigation in our country.The body of the article consists of three parts.Part one. A general study of burden of proof. In this part, to begin with, the article clarifies the concept of burden of proof, pointing out that burden of proof is the non-interest of litigation when the main requirement facts of an issue can not being proved. It is the allocation of the risk of litigation in character. It's object is the main requirement facts of an issue, and the condition of its applying is no-distinct in main requirement facts.Part two. Theories of the allocation of burden of proof in two law systems and evaluation of them. In this part, the article introduces briefly the theories of the allocation of burden of proof in two law systems. Firstly, the article believes that the theories of allocation of burden of proof were originated from two principles of allocation of burden of proof in ancient Roman law. After a long time passed away, two principles had derived from them. Till the German Civil Law Code promulgated, the other two theories had been raised up by scholars. Today's principles of allocationof burden of proof are based on criticism of the former theories and aim at overcoming their shortcomings. Today in German, there are two theories of allocation of burden of proof, and in Japan, there are two too. However, in common law system, out of the reason of adapting the thinking method of from -the-fact -starting off, there is not one common principle of allocation of burden of proof. From the modern times, there are three main theories of allocation of burden of proof. Then, the article do a summarizing on the principles of allocation of burden of proof in two law systems, pointing out that both principles in two law systems are based on the pursuing of justice of law and fairness of litigation, though there are advantages and disadvantages about the methods of allocation of burden of proof. Also, by the times gone away, the two law systems have getting more and more similarities about this, but the difference will not die away, for the differences of methodology of litigation thinking exist.Part three. The construct of system of allocation of burden of proof in China. This part is the key part of the article. Firstly, the article considers that people should have some certain idea in order to conduct the allocation of burden of proof. And there are two ideas about this: justice of litigation and efficiency of litigation. Moreover, concept of justice of litigation can be sub-divided into procedural justice and substantive justice, or general justice and specific justice. We should pay more attention to procedural justice. Then, a series of advices is been put forward. The article thinks that the system of allocation of burden of proof is consisted of general rule, specific rule and judge discretion rule. The general rule is the requirement fact theory, and its adoption is decided by the legal tradition and actual situation of our country. The specific rule refers to upside-down allocation of burden of proof, and it covers 8 situations regulated by Rule of Evidence of Civil Litigation. Where there are legal loopholes, the judge may allocate the burden of proof on considering justice principle, honesty principle and the litigants' ability of producing evidence, and so on. However, this practice will bring fugacity about legal execution, so it is necessary to regulate it. Besides, the article discuss the allocation of burden of proof under two specific circumstances, i.e., confession and waiver of proving, with the point of viewthat both litigants and court should be bound by confession: litigants can...