Study On Several Issues Of The Conversion Of The Civil Burden Of Proof

As the complementarity and improvement of the general principle of the distribution of the civil burden of proof,the conversion of the civil burden of proof has an important position in the study of the evidence law and the procedure law.At present,our country's research on the system of the conversion of the civil burden of proof is still in the primary stage,it is necessary for people with high ideals to make further discussion of them.Owing to the backward study of law and the imperfect system of law,people can't understand and grasp the system of the conversion of the civil burden of proof.In this thesis,the author entirely studies the system of the conversion of the civil burden of proof from the aspects of the meaning,the arising process,the basis of application,the status quo and the perfection of the system of the conversion of the civil burden of proof of our country,with the hope that it would be beneficial to proper understanding and further study of the system of the conversion of the civil burden of proof. This thesis is divided into four chapters. In chapter one,the author clarifies the meaning and characteristics of the conversion of the civil burden of proof by making a discussion of the meaning and nature of the burden of proof. As a prerequisite concept of the conversion of the civil burden of proof,the meaning and nature of the burden of proof is discussed at first in this chapter.At present,there are three main theories about the meaning of the burden of proof:the theory of action liability,the theory of result liability and the theory of double meanings.And there are three main theories about the nature of the burden of proof:the theory of right,the theory of obligation and the theory of risk bearing.Through research,the author gives the opinion that we should discuss the meaning and nature of the burden of proof on the basis of the theory of double meanings and the theory of risk bearing in this chapter. On the basis of the clarification of the meaning and nature of the burden of proof,the author further clarifies the meaning and characteristics of the conversion of the civil burden of proof in this chapter.At the same time,the author studies some related definitions concerning the conversion of the civil burden of proof in this chapter,with the aim of understanding the meaning and characteristics of the conversion of the civil burden of proof better. In chapter two,the author studies the process in which the system of the conversion of the civil burden of proof arises in order to comprehend the system of the conversion of the civil burden of proof better. At first,the author studies the logical premise of the conversion of the civil burden of proof,which is the general principle of the distribution of the civil burden of proof in this chapter.About the distribution of the burden of proof,different theories appear since the period of the Roman Law. Based on the study of various theories,the author points out the particular background and the process in which the system of the conversion of civil burden of proof arises.Due to the defects of the"theory of legal regulations",the shortcomings of new theories and the social development,the system of the conversion of the civil burden of proof at first appears in Germany. In chapter three,the author particularly discusses the value and the concrete factors which influence the conversion of the civil burden of proof .After understanding fully the grounds on which the conversion of the civil burden of proof based ,we can comprehend,apply and develop the system and the theory of the conversion of the civil burden of proof better. Being an exception of the general principle of the distribution of the civil burden of proof,the conversion of the civil burden of proof is a kind of special rule of the distribution of the burden of proof,which contains abundant valuable contents behind it.Three important value principles that influence the conversion of the civil burden of proof are the substantive justice,the procedural justice and the efficiency of the litigation.Firstly,the conversion of the civil burden of proof embodies the value of the substantive justice.The realization of the substantive justice need two premises.The first premise is tofind out the facts of the law case,then give proper judgement in virtue of the nitty-gritty.The second premise is that the principle of the distribution of the burden of proof must accord with the aim and legislative spirit of the substantive law and make necessary revision and improvement.However,in some special conditions,the general principle of the distribution of the civil burden of proof can't realize these two premises,so the conversion of the burden of proof must be applied to make revision and complementarity in order to be beneficial to the realization of the substantive justice.Secondly, the conversion of the civil burden of proof embodies the value of the procedural justice.According to the demand of the procedural justice,the author points out that the burden of proof borne by the plaintiff and the defendant should be generally equal,but it is not saying that they must have equal shares.In general condition, the plaintiff is in an advantageous position,but the defendant is in an inferior position. The court should put the burden of proof on the party who has the condition and ability to provide evidence,thus the general balance between the two parties can be assured.Therefore,in the most cases,it is fair that there is the general principle of the distribution of the burden of proof which is based on the "theory of legal regulations".However,in some special conditions,due to the restriction of his quality and the objective conditions,the party lacks the condition and ability to prove some facts to be proven,it is the reflection of judicial fairness that the party with adequate conditions bears the burden of proof.In addition,the freedom of procedure and the honest and credict are the important embodiment of the procedural fairness.It accords with the procedural fairness that the two parties agree on the conversion of the burden of proof and the conversion of the burden of proof is applied to the party who violates the principle of the honest and credict.Thirdly,the conversion of the civil burden of proof embodies the value of the efficiency of the litigation.The rhythm of litigation is influenced directly by the different disposition of the burden of proof,which can accelerate or retard the process of proof.An important reason why people pay attention to Rosinbeck's "theory of legal regulations"is that it does good to the efficiency of the litigation.But insome special conditions,being influenced by each party's distance from the evidence,the ability to collect the evidence,the difficulty to access the evidence,the party who should have borne the burden of proof lacks the condition according to the general principle of the distribution of the burden of proof.So the court should put the burden of proof on the party who has the condition and ability to provide evidence,with the aims of being beneficial to find out the fact of the law case and enhancing the efficiency of the litigation. Due to the fact that the value influencing the conversion of the civil burden of proof is raveled,but it is more abstract and the operation is difficult.In order to enhance the operation,it is necessary to make use of the abstract value in the judicial practice by the concrete factors influencing the conversion of the civil burden of proof.In order to understand the system of the conversion of the civil burden of proof better,the concrete factors influencing the conversion of the civil burden of proof are studied in six aspects in this chapter,they are the protection of the poor,the evidence distance,the different ability of providing evidence,the probability of things'occurrence,the prevention of lawsuit,the deterrent of lawsuit and the negative certification. In chapter four,the author discusses the current situation of the system of the conversion of civil burden of proof of our country and gives some constructive suggestions on the basis of discussing the meaning,the arising process,the basis of the conversion of the civil burden of proof. At present,the regulations of the conversion of the civil burden of proof of our country mainly are represented in some provisions of the substantive law and the judicial interpretation of "Regulations on Civil Lawsuit Evidence of the People's Supreme Court".Although making large progress,there are also some problems.For example,the judge lacks the right of changing the present regulation,there isn't the regulation of contract for evidence ,the interfering of proof isn't put into the system of the conversion of the burden of proof,there is obscurity between the liability without fault and the conversion of the burden of proof.In view of the current situation of our country,the author reaches the...