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Introduction To Burden Of Proof

Posted on:2005-05-25Degree:MasterType:Thesis
Country:ChinaCandidate:H C YuanFull Text:PDF
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After years' unremitting reform, inquisitional trial emphasizing on substantive justice by unlimited power of judge in China has been replaced by adversary trial representing the subject principle of party concerned by giving consideration to substantive justice and process justice. Adversary trial emphasizes on clear and rational division between the party concerned and the judge on the basis of essential rule of judicial act, and releases the judge from heavy burden of evidence investigation and gathering. The principal responsibility of evidence investigation and gathering is returned to the party concerned. Evidence induction is directly connected with lawsuit consequence when respecting principle of disposition and self-rule simultaneously, so as to put the party concerned to practical burden of proof. From the aspect of the party concerned, civil suit is a kind of action of lawsuit poof, which can take claim as a thesis, facts and reasons as argumentation. Deduction of known thesis by known argumentation is an action of lawsuit poof. But such facts and reasons as argumentation should be demonstrated by the party concerned and verified and checked by the judge. Also, lawsuit poof is only a persuasion but not restriction to the judge. In consideration of perceptibility and ability of inducing evidence by the party concerned, and judicial idea and social experience, there is no real objective lawsuit proof by such party concerned. From aspect of the judge, civil suit is a kind of legal reasoning of lawsuit, in which the judge conducts by two judicial decisions, namely, ascertainment of facts and application of law. In point of modern judicial decision, three-phase logic theory is usually adopted, i.e. majorpremise - legal provision, minor premise - ascertainment of facts, deduction of unknown conclusion, i.e. judicial decision by known major premise and minor premise. Such process is a typical legal logic. However, the law is more than logic inference. With dialectic reasoning (judgment of value) involved, it is not only the unification formation rule and value rule, but also of ideology and practice. Legal reasoning by the judge is a restriction to the party concerned. Facing the facts of lawsuit by the party concerned, the judge is forced to make a compulsive judgment and inevitably lead to unconfirmed risk in judicial decision. It is because that failure of proof by the party concerned and unconfirmed risk in judicial decision by the judge, adding principle of final judicial decision, which disallows the court to refuse to conduct a judgment on civil suit, can burden of proof evolve and closely connect with essential rules in suit process. However, burden of proof is not original in China, but an exotic. From ancient Rome till end of 19th century, it had always been referred to responsibility of providing evidence merely. At the end of 19th century, legal experts respectively belonging to two genealogies of law broke such traditional opinion in dominant position coincidently, and made consensus (or similar point of view at least) of two meanings of burden of proof, not only responsibility of evidence proof, but of consequence. Also, they made consensus of action responsibility as a derivative from consequence responsibility. Burden of proof introduced to China has experienced theories of action responsibility, of consequence responsibility, of two meanings and of three meanings, which represented constant deepening of acquaintanceship to burden of proof in China. I think: According to goal and orientation of reform concerning civil trial of China, and annotation of legal responsibility by modern jurisprudence, it is proventhat double meanings of burden of poof is feasible in practice. In nowadays, such theory has become the dominant ideology of jurisprudential circle and confirmed by judicial interpretation. Burden of proof contains double meetings, representing unification of action responsibility and consequence responsibility, whose premise is existence of opinion of lawsuit. While opinion of law...
Keywords/Search Tags:adversary trial, lawsuit poof, legal reasoning of lawsuit, burden of proof, action responsibility and consequence responsibility, distribution of burden of proof (including inversion), right of discretion, distribution burden of proof in China
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