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Allocation Of The Burden Of Proof And It's Application In Trial Practice

Posted on:2011-06-14Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiFull Text:PDF
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With the development of the society, the soundness of the legality and the renovate of the philosophy, the lawsuit mode in china changed from official system in the early period of china to adversary system.The change of the collection and the way to use the evidence makes the litigant pay more and more attention to rule of the evidence when in lawsuit. Before the judge made a trial based on his (her) subjective judgment and then collected the evidence. Now the situation changed. The judge makes a trial based on objective assessment of the evidence. In the trial mode of adversary system, the lawsuit is the game of the evidences of the two opposition parties. The lawsuit process is also the same. The two parties in court not only need the evidence to debate, but also need to persuade the judgement. If no evidence in the case, means no reappear of the facts, nor the possibility to win the case. In conclusion, it is very obvious that the evidence is so important in lawsuit. The judge is neutral in judgement, but he is not the parties concerned of the case. He is necessary to judge and know about the facts by the evidence. His(her) judgement of the strength of the evidence and the distribution of the burden of proof will be directly lead to the two parties'burden of proof in proportion. The burden of proof in proportion to some extent can decide the percentage to win the case. So the judge can finally decide the lawsuit by his judgement of the evidence and his fair distribution of the burden of proof directly decide the fairness of the case. On the other hand we need to see that judge is also a human being and he is an individual who live in the society. One'thinking gradually develop from when he was born and also influent and restrict by his objective life environment and experience. Each individual'understanding of life and society is different, thus lead to the huge difference among different judges's judgement of the facts and their distribution of the burden of proof. So the result of the case to a grent extent is influenced by judge's individual will.We cant standardize the judge's thought by simply using the easy rules of evidence. Because each case is different and complicated and it has its own characteristics. It is impossible that we use one same rule of evidence to balance all cases, thus thought is the essential point. We should cultivate and train judges by exercising their minds, thus judges can distribute the burden of proof more fairly and keep it maximum fair.The theme of this article is to analyze and discuss the importance of the burden of proof and its system of distribution to the judgement in the future by the problems brought by the judicial practice. It is also put forward the opinion and view about how to use theory to guide the practice and how to use the practice to make the theory perfect.
Keywords/Search Tags:Civil action, Burden of proof, System of the burden of proof, The allocation of the burden of proof, Trial Practice
PDF Full Text Request
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