On The Assignment Of Burden Of Proof In Civil Procedure

Burden of proof by the German Procedure scientist Rosenberg referred to as"the backbone of Civil Procedure,"is a judge method of unclear of the essential fact. The proverb also vividly seen that the importance of burden of proof. Burden of proof includes subject burden of proof and objective burden of proof. Both of the burdens are a kind of complementary relationship. Subjective burden of proof is determined by the objective burden of proof, which depends on the objective burden of proof, and is the"image"of the objective burden of proof. The object of burden of proof is the essential fact. When the essential fact is clear, the judge can judge the case by the substantive law norms, otherwise, he can judge it by the burden of proof. The burden of proof is very important to the judge and the parts of the case. The distribution of the burden of proof is the core issue of the Civil Evidence institutional theory, which decides how to allocate the direct outcome of the proceedings, protection of the rights between the parties, a research on burden of proof has an important significance.The body of the article consists of four parts.Part one. Overview of the burden of proof The section studying from the burden of proof contained in double meanings and the relationship, the nature, function, object, application condition and the relationship of the burden of proof and the assignment of the burden of proof in these seven parts. Burden of proof includes subject burden of proof and objective burden of proof. Both of the burdens are a kind of complementary relationship. Subjective burden of proof is determined by the objective burden of proof, which depends on the objective burden of proof, and is the"image"of the objective burden of proof. The object of burden of proof is the essential fact. When the essential fact is clear, the judge can judge the case by the substantive law norms, otherwise, he can judge it by the burden of proof. The burden of proof is very important to the judge and the parts of the case, which is the prerequisite of the use of burden of proof. Burden of proof is the basis of the assignment of the burden of proof. Burden of proof is a adverse outcome, but the assignment of burden emphasize the standard of the burden of proof.Part two. The theories of assignment of burden of proof This section introduces the theories of the assignment of burden of proof in Two Law Schools and evaluates them. Part three. The current situation and the trouble of the assignment of burden of proof in China In this part, the article clarifies the current situation of the assignment of burden of proof in China and points out the shortage of the assignment of burden of proof from three parts.Part four. The construct of system of assignment of burden of proof in China The section introduce the elements of the value of the assignment of burden of proof. The construct of system of assignment of burden of proof should be based on the theory of the legal essentials classification as the general principle and inversion of burden of proof as special principle with the judge's free jurisdiction and so on.