Study On Distribution Of Burden Of Proof In Civil Action Standards In China

On the study of burden of adducing evidence, different people hold different opinions in the theoretical circle. Besides the concept, characters and burden, people also have an argument on the standard of distribution of burden of adducing evidence. It is necessary to confirm the standard of distribution of burden of adducing evidence and distribute the burden of adducing evidence according to certain standard beforehand to make sure that civil procedure can go along in order and efficiently. There are two cognitions on the standard of distribution of burden of adducing evidence in the theoretical circle of overseas code of civil law. One takes for that the distribution of burden of adducing evidence is anfractuosity, so it is difficult to establish an uniform standard on the burden of adducing in advance and what we can do is to aim at the frondose case and educe the verdict individually. The other considers the though the problem of distribution of burden of adducing evidence is too difficult, it still exists some rules to follow. It is not only necessary to make sure the uniform standard on the distribution of burden of adducing evidence, but also possible. The scholars from Anglo-American Law System support the former, and the scholars from Continental Law System hold the latter, especially the German and Japanese scholars. On the standard of distribution of burden of adducing evidence, scholars argue about the problem in the theoretical circle in our country from the beginning of the reforming of the mode of civil trial in 1988 and many scholars concern and study the issues, but they hadn't acquired effective breakthrough. Which makes some scholars consider that: the standard of distribution of burden of adducing evidence is a recognized legal puzzle and nobody can solve it properly up to the present. The inconsistent cognition on the problem in the theoretical circle and the legislative limitation induced that the understanding of law circle disorder, the execution varies and the authority of legislation and justice was impacted. With the amending of Civil Procedure Law of the People's Republic of China, it is necessary to discuss the standard of distribution of burden of adducing evidence, which plays a very important role in civil procedure law in our country.This paper focuses on the study of the standard of distribution of burden of adducing evidence in civil procedure. This paper, which is divided into four parts, contains the concept of burden of adducing evidence of civil procedure, the historical origin of the standard of distribution of burden of adducing evidence and the primary doctrines and analysis of two-law system, the actuality and deficiencies of the standard of distribution of burden of adducing evidence in our country and the construction and perfect of the standard of distribution of burden of adducing evidence in our country.In the part of the concept of burden of adducing evidence, the author expatiates on the opinions of legislation and the law circle of civil procedure of our country from the origin, evolvement and development of burden of adducing evidence. On the basis of which, the author puts forward personal opinion. The burden of adducing evidence of behavior meaning indicates that the party should be responsible for providing evidences to prove his affirmation. The burden of adducing evidence of result meaning indicates that before the end of litigation and when the fact of the case is still in an unclear situation, the adverse litigation sequence belongs to the party who claim the fact. On the one hand, both the liability of behavior and the liability of result are the necessary composing part of the concept of burden of adducing evidence, and the relationship between them are dynamic and static relationship. On the other hand, although the burden of adducing evidence of civil procedure has double significations that connect with each other, we can't consider them the same meaning simply. In certain extent, the liability of result can dominate the liability of behavior, and the liability of result is the essence of the liability of behavior.The historical origin of the standard of distribution of burden of adducing evidence and the primary doctrines and analysis of the two-law system contains four aspects. Firstly, the author investigates the historical origin of the standard of distribution of burden of adducing evidence. Secondly, the author analyses the primary doctrines, which mostly include the doctrine of the sort of pending truth and the doctrine of the sort of legal factors and analyses the doctrine of criterion which was belong to the doctrine of the sort of legal factors. Thirdly, the author analyses the neodoxy of the burden of adducing evidence, such as the doctrine dangerous field, the doctrine of probabilism and the doctrine damage adscription and the doctrine of dominant field. Fourthly, the author researches the academic opinions of the Anglo-American Law System, which takes for that the standard of distribution of burden of adducing evidence of the Anglo-American Law System represents the aggregation of multi-factors, which has the merit of agility and the defects of randomicity. The Continental Law System mostly adopts the doctrine of the sort of legal factors, though whose standard of distribution is very clear and convenient for the operation of justice. In face of the development of "modern litigation", The countries of the Continental Law System tend to adopt the principle of giving priority to the sort of legal factors and giving subsidiaries to the scale of benefit.In the part of the actuality and deficiencies of the standard of distribution of burden of adducing evidence in our country, there are three standards: generic standard-who claim, who quote, especial standard-the convert of burden of adducing evidence, pending standard-the judge adjudicates at liberty. After studying the actual law and judicial explains, the author analyses the legislative deficiency on above three standards one by one.In the part of the construction and perfect of the standard of distribution of burden of adducing evidence in our country, the author brings forward the frame of the standard of distribution of burden of adducing evidence in our country, on the basis of discussing the non-transferability of burden of adducing evidence. Before probing into the standard of distribution of burden of adducing evidence, what we should do is to make sure a problem, which is whether the burden of adducing evidence can be transferred finally? Clarifying the cognition correctly, which has irresistible meanings for establishing the standard of distribution of burden of adducing evidence, perfecting the system of the standard of distribution of burden of adducing evidence and supervising legislative and judicial practices. The opinion of "the burden of adducing evidence can transfer " was in a dominant status in our civil procedure for a long time. In fact, the transfer of burden of adducing evidence has many problems, for example, ignoring the rules of the distribution of burden of adducing evidence, making against the basic functions of the burden of adducing evidence and being easy to leading the judicial confusion and so on. Because we don't differentiate the difference between the burden of providing evidence and the behavior of providing evidence, we always consider that the burden of adducing evidence can be transferred. On the standard of distribution of burden of adducing evidence, we should adopt the doctrine of criterion as the fundamental standard, combining the doctrine of dangerous field, the doctrine of probabilism and the doctrine damage adscription as complementarity, then applying justice and the scale of benefit to guide the judge how to distribute the burden of adducing evidence , and establish a system of the standard of distribution of burden of adducing evidence sequentially.