On The Principle Of Distribution Of Burden Of Proof In Civil Action

"The burden of proof lies upon him who affirms" is an unquestionable principle of the allocation of onus probandi which has been accepted ever since the origination of Roman law. However, such rules as "upside-down onus probandi", "transfer of onus probandi", "immunity of onus probandi"," investigation and collection of proofs by the court" and the related concepts thereof have become popular among the circles of science of law and law implementation. Although such rules as "upside-down onus probandi" and the related concepts thereof are unquestionably reasonable, it is believed by the writer that the existence and the rationality of these rules do not mean the denial of the allocating rule of onus probandi: The burden of proof lies upon him who affirms.It is believed by the writer that such specific allocating rules as "upside-down onus probandi", ""transfer of onus probandi", "immunity of onus probandi", " investigation and collection of proofs by the court" shall be respectively regarded as the specific embodiments of onus probandi allocation. The reasons are discussed as below. First, in terms of the classification of legal relationship, civil litigation legal relationship is legal relationship of subordination (vertical legal relationship), which is the fundamental characteristic of civil litigation legal relationship. Secondly, in terms of onus probandi itself, the nature or attribute of onus probandi is the compulsory burden for the parties to provide proofs for the judge and the tribunal in the exercise of their litigation rights. In the event that the party claiming a certain right abandons this burden or fails to perform this burden sufficiently so that the judge is not convinced, the failure of proof will take place, which will in turn cause the refusal of the party's litigation claim. The request of the party taking action will also be rejected.The details are expounded as below. 1. Where "upside-down onus probandi" is adopted, the plaintiff shall, after claiming compensation for the infringement of the defendant, provide proofs to prove the existence of the infringement by the defendantand the loss caused thereby. In the event that the plaintiff fails to provide proofs or fails to provide proofs sufficiently, the judge will not be convinced and the claims of the plaintiff will certainly not be supported by the tribunal. After the plaintiffs performance of his or her onus probandi, the defendant shall provide proofs to prove the non-existence of the causal relation between the infringements, damage and his or her actions so as to confront the plaintiffs proofs and claims. The so-called inversion of onus probandi in the academic community does not take place here at all. 2. Where "transfer of onus probandi" is adopted, the party making claims will provide proofs to convince the judge. The other party will deny, rebut or provide proofs to prove that the claims made shall not be accepted so that the judge will be prevented from being convinced of the facts claimed, which will necessarily take place as the litigation develops. 3. Where "immunity of onus probandi" is adopted, the profession of the parties, notarial documents and effective judgement documents themselves are proofs instead of the "immunity" of onus probandi. The facts known by all, the putative facts and so on are sufficient to convince the judge, which legally makes the proofs of the parties unnecessary, let alone the "immunity" of the onus probandi. 4. The application of "investigation and collection of proofs by the court" in fact distributes the onus probandi in terms of actions (responsibility to provide proofs) and onus probandi in terms of consequence among the court and the parties. This rule, however, does not change the allocating rule of onus probandi that the parties shall independently bear the consequences caused by the provision of proofs. In addition, where this is adopted, the proofs (evidences and clues) are also provided for the tribunal so that the judge will be convinced. To sum up, the above-said rules are specific application of the allocating rule of onus probandi (The burden of proof lies upon him who affirms).But the court obtain evidence according to the job power inquisition is the exception that offers as proof the responsibility allotment principie.