Civil Action To Prove The Issue Of Responsibility Is A Comparative Study

All civil litigations concern about two factors: the finding of facts and the applying of laws. It is important for an efficacious legal system to appropriately settle the dispute of facts. The judges need the access to the original facts. Whereas all facts in case can be only reflected by evidence. In the case neither plaintiff nor defendant have persuaded the trier of fact about whether a particular fact exists, to say that one party shall lose the case is the key point of the question of the burden of proof, it is the last remedy ("ultima ratio") .There exists a legal saying: The burden of proof is the backbone of civil litigation. Although the civil law system and the Anglo-American law system have different fact-finding method, they both shall concern about the question of burden of proof. This thesis, base on the different mode of civil litigation, i.e., the so called "rules-origined litigation" and "facts-origined litigation", tries to make a comparative research on the burden of proof. The principal content of the thesis contains the inevitability of the question of burden of proof, content of the concept of burden of proof, the allocation of burden of proof, legal field of the rules of burden of proof, etc. The core of the question of burden of proof is the allocation of the burden of proof. The author also makes a particular research on the term "presumption", an important system which affects the allocation of the burden of proof.This thesis arrives the conclusion that although the civil law system and the Anglo-American law system may have different settling method concerning a particular question, the philosophy hidden behind has many things in common. For example, in both the legal systems, the burden of producing evidence is the "ramification" of the burden of proof. One (the burden of producing evidence) shifts, the other (the burden of proof) does not. Based on the result of comparative research, this thesis tries to study the relevant question in China. For example, the author gives his opinion on the Regulations on the civil evidence of the Supreme Court and research method of our country's evidence law.There are two conclusions that shall be specially pointed out: One, in most issue in civil cases, courts consider a number of factors in determining where to place the burden of proof, including: (1) which party is trying to change the status quo (he is more likely to bear the burdens); (2) who is contending that the more unusual event has occurred (he is more likely to bear the burdens); and (3) which way do policy considerations cut (the court may allocate the burdens in a way that promotes some extra-judicial social policy). This principle is applicable for both the civil law system and the Anglo-American law system.Two, the rule of burden of proof acts as the bridge of the procedure law and the substantive law. In a sense, the substantive law determines the location of burden of proof. And to interpreting the rule of burden of proof is an important means for the interpretation of substantive law, especially for those civil law countries, including our country.