A Study Of Judge Discretion-Based Distribution Of Burden Of Proof

Distribution is the focus of burden of proof which is the core of civil procedure evidence system, so it's of great theoretical significance. Meanwhile, the burden of proof distribution rules guide judges to make a judgment when the truth is ambiguous, which is conducive to judicial practice. Moreover, the distribution of burden of proof is a very complex topic, since there are many differences and disputes in theory. Considering their significance and complexity, the rules of distribution of burden of proof are particularly regulated in statute laws in most countries and regions of the world. However, statutory rules of distribution of burden of proof can not meet the needs to resolve all civil disputes due to inherent defects of law as well as complex situation of civil disputes. As a result, the judge discretion-based distribution of burden of proof is a necessary supplement of the statutory distribution of burden of proof, and they constitute a sound system of burden of proof altogether. And it is necessary to regulate the empowerment, otherwise it will result in the abuse of judicial discretion.This thesis is composed of three chapters:Chapter one presents the theory of judge discretion-based distribution of burden of proof. The writer firstly reveals the connotation of judge discretion-based distribution of burden of proof by understanding the meaning of judicial discretion and distribution of burden of proof. Then, the writer discusses the basis of this type of distribution and concludes that it's necessary to empower the judge to distribute the burden of proof. After that, the writer analyzes the relationship of the two types of distribution, and concludes that judge discretion-based distribution of burden of proof is a supplement of statutory distribution of burden of proof, and the two constitute a complete system.Chapter two compares domestic and foreign legislations and judicial practices. After considering the legislation and judicial practices of the two legal system, the writer summarizes the inadequacies of our country: in terms of legislation, the system of burden of proof is imperfect, empowering judges to distribute the burden of proof by a judicial interpretation does not conform to legislation law and the principle of burden of proof distribution that"He who is affirming must prove"is unscientific, while in terms of specific norms, there's a lack of corresponding procedure regulations and constraints.Chapter three suggests how to improve and develop the judge discretion-based distribution of burden of proof. This section is divided into four different aspects regarding legislation improvement, start-up condition and consideration factors, specific procedure regulations and constraints, and qualification of judges.