Discretion Of Judges In The Distribution Of Burden Of Proof

Distribution is key to burden of proof which is indeed the core of civil procedure evidence system. Considering the significance and complexity, the rules of burden of proof are generally or particularly regulated in procedural or substantive laws of most nations of the world. Nevertheless, legal regulation of burden of proof is still imperfection due to inherent defects of procedural and substantive laws as well as complex situation of individual case. Divergence in terms of judge's discretion of distribution of burden of proof therefore occurs. This article which starts with the above circumstances mainly discusses the basis, value orientation and start-up condition of discretion of judges in the distribution of burden of proof based on which reasonable suggestion of regulation is rendered thereafter so as to make contribution to the practice of civil justice.This article is composed of 4 chapters.Chapter 1 is about the existing basis of discretion of judges in the distribution of burden of proof. The writer firstly analyses inherent defects of laws, which are the ambiguity of legal language, the hysteretic nature of legal regulation, the abstraction of legal rule and the conflict of different value etc. After that, the writer construes different theories of discretion of judges in the distribution of burden of proof, which consist of weigh of interest theory in Anglo-American law system, element of law theory in continental system, dangerous realm theory, damage relegation theory etc. Finally the objective necessity of discretion of judges is then induced.Chapter 2 is about criterion of value of discretion of judges in the distribution of burden of proof. Based on criterion of value of civil substantive law and system of civil procedure, the writer suggests the following aspects should be considered, which conclude maximum realization of legislation aim, maximum discovery of case truth, maximum security of procedural justice and maximum reduction of litigated cost. Moreover, maximum consideration of different value is also emphasized so as to realize the equity and justice of law.Chapter 3 is made up by start-up condition of discretion of judges in the distribution of burden of proof. The prior start-up condition of discretion of judges in the distribution of burden of proof is suggested as satisfaction of form required including legal provision, judicial interpretation as well as contract for burden of proof. The material start-up condition is meanwhile suggested as the remaining justified of the facts to be proved to which the exhaustion of discretional evaluation of evidence by judge is vital.Chapter 4 therefore induces certain reasonable rules for discretion of judges in the distribution of burden of proof. This section is mainly composed of three regulated measures from three different aspects regarding legislative technique, legal system and qualification of judges. Such measures are rendered at the aim of maximum utilization of discretion of judges and maximum avoidance from abusing discretion of judges.