A Study Of New Problems In Civil Burden Of Proof

The evidence system of civil litigation system is an important and a main component at the same time of a civil entity. It directly decides the key elements of civil substantive judgment. And the burden of proof system is the system of evidence this focus "backbone". The burden of proof system is more clear embodiment can be traced back to the ancient Rome law times. At the time of the burden of proof of ancient rules and not by specific legislation regulations, but to establish some basic principles should be reflected, basically can be divided into two, namely, the plaintiff has the burden of proof obligations and claims that people have the obligation, to deny the people will not be proof obligations. After this. Germany to Rome law rules of evidence are the inheritance and development of the times, to the German common law of objective burden of proof concept is widely recognized, this doctrine soon became the German theory and legislation in general can be established. Later this doctrine to Japan, has affected the entire continental law system countries. Anglo-American scholars on the burden of proof is not known, they from hierarchical structure point of view, that the burden of proof means comprises a first level of burden of proof and second levels of burden of proof. The burden of proof system develops to today, world each national legislation, the burden of proof is a word, there is still no clear definition and standard of proof, but by some, to demonstrate the principles, rules and related evidence system confirmation.China ancient times realizing" combination of all laws"," prison light people" in the legal system, the system of the burden of proof in a different form of sporadic manifests in the different legal systems, it is difficult to generalize system of evidence system standard system. In modern times, with the Qing government a series of judicial reform died. Chinese modern judicial system build and perfect also ended in failure. After the founding of new China, our country begins to develop socialism with Chinese characteristics legal norms, and gradually establish their own legal system. But in the entity still belongs to the continental law system countries have not yet developed type, because the uniform civil code, corresponding to the program on the burden of proof legislation is limited, the present stage our country mainly through judicial interpretation standard system of the burden of proof in theory, our country has been more clear that the burden of proof is the responsibility, and in in the judicial practice and its legal consequences often closely, more as a result liability to. China's current civil trial on new problems are the main burden of proof:In 1, the burden of proof the understanding of meaning and applicable existence theory on diversity and confusion in the practice of. Current, our country academia was the burden of responsibility, or by the objective burden of proof theory of continental law system. Anglo-American law system some learning burden of proof theory. On the nature of burden of proof, some advocates the losing risk burden to say. others insist that the adverse consequences and so on, to the judicial workers when handling practical cases brought inconsistent or even contradictory theory, leading to the judicial referee chaos.In 2, the judge free heart certificate applicable when no rules and the lack of supervision and restriction. The current legislation on one hand to recognize the need to give the judges'discretionary power, on the other hand, show a high degree of suspicion, through a large number of legal evidence norm bound trial personnel, causing the judges discretion exists in name only or abuse, abuse of discretion.In 3, the burden of proof system in the legislation gaps and omissions, hysteresis and inconsistency. China has not formed uniform evidence code (is currently brewing), the civil procedure law, criminal procedure law and administrative procedure law three to suit different rules of burden of proof and evidence that standard, it is difficult to distinguish strictly, judges tend to give attention to study and research the three procedure laws in the essential difference, and in the specific case of note for. These factors tend to judge handle specific cases caused by confusion and misunderstanding.The meaning of onus proband is not complex, should be summarized as:bears the burden of obligation in burden of proof cannot be subject to the corresponding adverse consequences. The definition includes three factors namely main body element, content element, the element. The main factor is that the system of the burden of proof of the rights and obligations of the undertaker, main body includes not only the case of the parties, including the people's court, and the people's court is an important part of the body. The content of elements, as the burden of proof the main implementation behavior, to provide first evidence, namely who provide evidence. The second is to provide what kind of evidence, evidence ability and the judgment standard, in which the free heart certificate system is the most important. Third is a burden of problems, namely proof time and action stages problem. So, according to the legal constitution theory, reconstruction of concept of burden of proof, in order to clarify the nature and meaning of burden of proof, in order to judge correctly understand and apply the system of burden of proof. Secondly, through analysis of the existing evidence of the necessity and feasibility of legislation of evidence in our country, the legal standard in theoretical research has made great achievements, in the judicial practice has been a firm foundation of practice. The legislation of evidence be imperative, should accelerate the pace of legislation of evidence. On evidence legislation mode mainly exist uniform evidence law, procedural law. perfect said said developed separate civil evidence law. civil code component. The separate civil evidence law that accords with the legislation of evidence attribute and the realistic condition of judicial reform in china. Evidence legislation principles include principle of combining inheritance and transplantation, retention and reform principle of combining theory and practice, combining the principles of. The legislation of evidence of specific content has the evidence legislation purpose and basis, the concept of evidence and evidence form, evidence, cross-examination and certification, witness testifying system.