Perfect On The Burden Of Proof In Civil Procedure Of China

The distribution of proof burden in civil suit refers to, once as the foundation of the judgment ,the essentials facts of law is under the unidentified and ambiguous condition, according to the rules and regulations in law or according to that the judge can conduct the administrative discretion under the special conditions, that the proof burden of the different legal essentials fact should be assigned previously between the both litigants so that the plaintiff should shoulder part of the proof burden and at the same time the defendant should shoulder the other part of proof burden. Because the rationality of the proof burden holds the crucial influence in the justice or impartiality of the whole civil suit system, the distribution of proof burden system is the strategic point in the civil suit.It formed many schools of doctrine after various scholars both of the continent law system and of the Anglo and American law system research the theory of the distribution of proof burden, while some nations have adopted part of those doctrine, and in addition constructed the distribution of proof burden themselves, meanwhile such a process has improved the distribution of proof burden to be more scientific. Because the system of the distribution of the burden of proof in our country has some hysteretic nature, and we still are lack of deeper research in distribution of the burden of proof, the distribution of the burden of proof in our country is not so perfect and improved. Although there once are scholars in our country had written papers to reason their research in this aspect, scholars in this theoretical circle have not yet arrived a unified framework because the civil procedure law and other legal provision in our country are still not definite and concrete enough. Therefore there are extremely crucial and strategic for our nation, through our analysis to the theory of the distribution of the burden of proof, to modify and improve our national theory of the distribution of burden of proof, to guide and instruct our people court to try civil cases justly equally and promptly and finally to promote the legislation of the civil procedure and its specific practice.First of all, the concept of the burden of proof has been explained in this thesis. And what is more there are two basic explanations about the burden of proof in the Anglo and American law system. The first one is that the burden of proof refers to such a behavior that the litigant provides enough evidence which so that enables the cases to be deliberated by the jury. The second one is that the proof burden is in reference to what the litigants have to response for the case that has been confirmed by the jury as fact and to commit the unfavorable consequences directly due to the ambiguous fact that cannot be identified as true or false in the ultimate period of the procedure. However the proof burden has been divided into the objective proof burden and the subjective proof burden in the continent law system. Through the interpretation and deeper research of our national law circle, we have achieved and presented some our own opinions in the respect of the proof burden theory.Secondly, there are also some comparisons of the proof burden system between the Continent law system and the Anglo-American law system in this essay. The allocation of proof burden theory originated from the law of Rome and the theory of facts need certificate and the theory of the law essentials classification dominates the theories according to the proof burden distribution in the Continent law system. Rosen Borg's criterion theory, as the representative of the law essentials classification theory, had been adopted by many nations'courts such as German and Japan as well as Taiwan district in China. Beginning with the 20th century, it appeared in the Continent law system many correction and supplement to the formerly established theory. And the Anglo-American law system believes that the proof burden distribution should only be conducted on the basis of comprehending the certain law elements synthetically, furthermore, the proof burden in specific case should be allocated specifically.Furthermore, it also explicates in this thesis our national distribution system which applies frames to the proof burden in the civil suit. The basic frames and theories in accordance with the proof burden distribution system in our nation believe that our national proof burden distribution system should consist of the general rules, the specific rules and related theory about the proof burden distribution, moreover, demerits existing in the recent legislation could be dug out through the deliberating our national current legislation.Finally, it put forward some suggestions to refine our national system of the proof burden distribution in this thesis. Such suggestions mainly talk about the general rules, the contra positive rules, the specific rules, the proof time limit institutions which hold a close relationship with the proof burden distribution, the proof losing right system and the pretrial procedures.