Study Of The Civil Procedure Burden Of Proof Allocation Rules

Sharing the burden of proof means the distribution of the burden of proof among parties in civil proceedings , it is the heart of the burden of proof. In civil proceedings how to bear the burden of proof directly influence parties ' result of proceedings. China's Civil Procedural Law's providing neither systematically nor clearly sharing the burden of proof leads to disorder in the application of sharing the burden of proof in the practice of civil trials . Therefore , it is necessary that operational rules of sharing the burden of proof be established in the legislation of civil evidence .This paper is divided into four parts : based on a research in the similarities and differences between the continental law system and British and American law system on the meaning of the burden of proof and way of sharing the burden of proof , it discriminates the meaning of the burden of proof and expounds the content of system of the burden of proof . Distribution of the burden of proof must follow basic principles,which is the ultimate aim and orientation of value that the distribution rules for the burden of proof attempt to realize . Therefore , Part 1 expounds the above basic problems concerning distribution of the burden of proof.Part 2 expounds the general rule and special rule for distribution of the burden of proof from general to special . The general rule forsharing the burden of proof is the most commonly used distribution rule for the burden of proof in civil proceedings . It should include the following two rules : one is the rule that the party who sets up a claim should produce evidence . That is , according to the provisions of Article 64 , Section 2 of China's Civil Procedural Law , "parties are obliged to produce evidence for the claim they set up . " Accordingly , the rule that the party who sets up a claim should produce evidence is established as the most fundamental sharing rule for the burden of proof. Parties' claims must be based on corresponding evidence rules and denying or refuting opposite parties should also produce evidence ; the other is the classification rule for legal norms , that is , the rule that the party who sets up a claim should produce evidence cannot solve the problem of how to distribute the burden of proof when the question in dispute is not clear and parties of both sides are incapable of producing evidence . In addition , in such circumstances law courts should not refuse to make a verdict on account of not being able to find out the facts . Solution of this problem should be based on the practice of civil trials so that judges can use the burden of proof normally , rationally and conveniently in trials .The inversion of the burden of proof is a special rule for distributing the burden of proof . It means that according to the provisions of law the burden of proof rests on the opposite party ( usually the defendant ) instead of resting on the party who sets up aclaim ( usually the plaintiff) in general circumstances and the plaintiff' s assertion will be presumed to be true if this party cannot produce evidence to prove . It is put forward as contrasted with the principle of " the party who sets up a claim should produce evidence ." The two distribution systems for the burden of proof are complementary with each other and together constitute a complete distribution system for the burden of proof . In judicial practice it plays a more and more important role and is used more and more widely . Its application not only concerns the realization of litigious rights but alo concerns the realization of substantive rights . Consequently , this part mainly expounds the characteristics of this special rule and conditions for application of it.Based on the needs of judicial practice , this paper discusses the question of judges ' right of free discretion in the application of distribution rules for the burden of proof. According to the author , judges ' being provided with some right of free discretion can help make good defects in law and guarantee the impartiality...