Judges Discretion In The Allocation Of Burden Of Proof

Judge's right of discretion in allocating of burden of proof is very important problem for the civil judiciary practice. The system of proof is the core of the system of civil procedure. However, the core of the system of proof is the concept of burden of proof, which exists and occupies an important position in both civil substantive law and civil procedure law. "The burden of proof is the spine of the whole civil proceedings", the core of the concept of burden of proof is the allocation of burden of proof, which is the most complicated but practical value is most important Compared with some countries' legislation, we can see that the allocation of burden of proof is ruled by legislation. However, the complicated judicial practice always make the legislation powerless and passive, judge exercises the right of discretion in allocating of burden of proof in order to make the theory perfective and it has been a tendency. Therefore, it is very important to research on judge's right of discretion in allocating of burden of proof. The paper is divided into five parts with the sum of about 40,000 words.In the first part, the writer introduces and comments on the representive concept of allocation of burden of proof and its legislation. Because of the defects of the theory and legislation, it is necessary for judge to exercise the right of discretion in allocation of burden of proof.In the second part, the writer comments on the purposes of judge's right of discretion in allocating of burden of proof. He declares asfollowed:l,fulfilling the purpose of the civil substantive law ;2,making adjudication be close to the fact;3,fulfilling the justice of procedure;4,economic lawsuit.In the third part, the w riter discusses the principles and factors when the judge exercises the right of discretion in allocating the burden of proof. He regards that good faith, justice, the capacity of the party should be considered.In the forth part, the writer discusses the conditions when judge exercises the right of discretion in allocating the burden of proof. There are four conditions as followed: l,court proceeding and court debate have ended; 2,non liquet; 3,not regulated by law;4,not regulated by judicial interpretation.In the last part, the writer discusses how to control the judge's right of discretion in allocating the burden of proof. He regards the right of discretion is a double sword. If the judge unjustifiable exercises the right, there are many of the bad consequence. So analyzing some expressions that the right of discretion exercised unjustifiable, the writer give some advice to control it, such as perfecting legislation, improving the judge's capacity ect.