The Elaboration On The Burden Of Proof Allocation In The Special Tort Cases

The burden of proof (Latin: onus probandi) is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position. How to allocate the burden of proof is a hot topic in either civil procedure law or the evidence law. Therefore, the theories about the burden of proof are encyclopedical and intensive. Normally, the allocation of the burden of proof determines the result of the case and effect on both of the parties'behalf gravely. Meanwhile, how to allocate the burden of proof also shows the ability and the wisdom of the judge in specific particular cases. So the judges are very cautious about how to assign the burden of proof. However, the rules about the burden of proof allocation are not clear and applicable, especially in some particular tort cases, the way how to allocate the burden is really intractable and ambiguous.Whereas most of the theories about burden of proof written by our scholars are some introduction of the theories from other civil law countries such as Germany and Japan, and common law countries as well. But they can not be applicable well in our legal practice. In this thesis, the writer hopes to elaborate the burden of proof allocation rules further and specifically through my study and research on the legal system both in civil law country and common law country and also the legal practice in different countries. Meanwhile, the writer tries to develop the burden of proof allocation rules based on my own legal practice experience and research in some special tort cases, especially in the cases like: united action hazardous torts, something unidentified falling or being thrown from high building hurt the people who is immaculate and so forth. And I hope that my efforts will be meaningful to the legal practice and do help for our judges to make better judgments.