On The System Of The Distribution Of Onus Probandi In Civil Litigation

The system of the distribution of onus probandi, aimed to help the judge settle the law case when the fact is ambiguous, is the core in civil litigation. However, it has long been ignored due to people's traditional idea on judgment. The research on the said system is confined to the dispute on the concept and nature of onus probandi and it has never been approached from a more profound perspective. The present law has no explicit stipulation on the onus probandi, which results in many unsolved problems in judicial practice. With the reform in the way of judging, clients begin to realize the importance of onus probandi and thus the system of onus probandi receives more and more attention and becomes one of the focuses of theoretic research and judicial practice. Therefore, the author puts forward the conception to improve the system of the distribution of onus probandi.The thesis is divided into the introduction, the body and the conclusion.In the introduction, the author summarizes the importance of the system of the distribution of onus probandi in civil litigation, points out the necessity of this research and puts forward the conception of the whole thesis.The body is composed of four parts: a brief account of the distribution of onus probandi, the value orientation of the distribution of onus probandi, the comparison and merits of the regulation of the distribution of onus probandi and the improvement of the system of the distribution of onus probandi.In part one, the author first discusses the concept and nature of onus probandi. The author holds that onus probandi carries dual meanings, namely, the onus probandi in the sense of action and the onus probandi in the sense of consequence, and the latter embodies the nature of onus probandi. The author also thinks that onus probandi, by its nature, can be deemed as an onus to lose a lawsuit. The onus includes both the onus for the clients to provide evidence and the onus for the client to take when the fact of the law case is ambiguous. The opinion emphasizes the onus probandi both in its nature and in its sense of action. The author then introduces several theories of onus probandi and analyses the advantages and disadvantages of each theory.