Research On The Problems Of Burden Of Proof Of Civil Procedure

The problem of burden of proof is the “backbone” of civil procedure and the oneof key problems of civil procedure’s theory and practice, if we can not solve thisproblem, the entire civil procedure will not “stand up” even “collapse”. The first of allproblems of burden of proof of civil procedure is the concept of burden of proof, it isthe starting point of studying of the other problems. So author analyzes thephenomenon of unclear of the essential fact that is the reason that produces theproblem of burden of proof firstly. In any systems of civil procedure, the judges cannot investigate the truth of every case clearly because of limitation of conditions, andthere are always cases that are unclear of facts. Judge can not refuse to judge case,and judge can not judge case because of unclear of fact, so burden of broof becomesthe method of overcoming unclear of fact. On the first part of chapter one of thisthesis, auther defines the connotation of concept of burden of proof of Civil-LawSystem firstly, and the concept of burden of proof of Civil-Law System includes twoconcepts: objective burden of proof and subjective burden of proof, and objectiveburden of proof is a procedure’s risk of unclear of essential fact, and subjectiveburden of proof is a procedure’s duty that parties prove the essential fact to avoid thedanger of losing lawsuit. Objective burden of proof exists in any civil procedures thatjudges are based on facts, and it is an abstract duty, and it has no relation withconcrete procedure’s actions; and subjective burden of proof exists in the civilprocedure of debate principle, and it includes subjective abstract burden of proof andsubjective concrete burden of proof. In the civil procedure of debate principle,subjective burden of proof is based on objective burden of proof, subjective burden ofproof is attached to objective burden of proof, but subjective concrete burden of proofhas a character of independence. At this part, author continues to analyze theconnotation of burden of proof of Common-Law System. The concept of burden ofproof of Common-Law System includes two parties too: burden of persuation andburden of producing evidence. The connotation and relationship of the two concepts is same as Civil-Law System’s defination. On the second part of chapter one, authordefines the relations between burden of proof and the nearby concepts of burden ofproof, including burden of proposition, assessment of proof, standard of proof, andthrough this author deifines the connotation of burden of proof further. On the firstpart of chapter two, author analyzing the reason why there is the problem ofassignment of objective burden of proof, in other words: the foundation of assignmentof objective burden of proof. The conclusion is that it is impossible for party whoproduces proposition of right to take entire risks of unclear of essential facts, andapropriate assignment of objective burden of proof does not breach justice. On thesecond part of chapter two, author anlyzes principles of assignments of objectiveburden of proof of Roman law, Civil-Law System and Common-Law System, andauthor analyzes the principle of Civil-Law System particularly. In Roman law, there isno the concept of objective burden of proof, and the principles of assignments are theprinciples of assignments of subjective bruden of proof. There are many thoeries onprinciple of assignment of burden of proof of Civil-Law System, including theories offactum probandum, theories of classification of elements to law and new theories oflatter half of20th century. The principles of assignmenst of theories of factumprobandum are based on characters of facts, and these principles have logic fault andhave no law principle of stability and law priciple of prediction; theories ofclassification of elements to law claims that classification of elements to law is thefoundation of principle of assignment, and there are many theories on principles ofassignment, and among these theories, Rosenburg’s “Nom Theory” is thefoudamental theory of German and Civil-Law System. In the latter half of20thcentury, although there are new thoeries that want to reform or deny Nom Theory,these theories can not shake the Nom Theory that is still the foudamental theory.Common-Law System has no principle of assignment of burden of proof that isgeneral principle of civil law, Common-Law System claims that the assignment ofburden of proof should be based on per case and be based on evaluating all of values.After analyzing the priciples of two Law Systems, author concludes that Civil-LawSystem can not give up normal priciple because of traditional statutory law andtraditional deductive reasoning; Common-Law System can not give up substantiveprinciple because of case law and analogical reasoning; although two Law Systems learn from one another, per Law System depends on core principle that fits owntradition of law. Through the analyzing of chapter one and chapter two, on the chapterthree author analyzes and reflects the domestic principles of assignment. On the firstpart, author analyzes “who advocate who proof”, and author’s conclusion is that“Who advocate who proof” can not be domestic principle of assignment. On thesecond part, author analyzes domestic problem of “inversion of burden of proof”,author’s conclusion is that “inversion of burden of proof” is only a special principleof assignment, and there is not a problem of “inversion” of burden of proof. On thethird part, author analyzes domestic problem that assignment of burden of proofbased on the titles of procedural parties, author’s conclusion is that there is not thisproblem, because objective burden of proof has no relation with concrete procedure.On the forth part, author analyzes the problem of assignment of burden of theSupreme People’s Court on a number of provisions of civil procedure evidence,author’s conclusion is that although the Supreme People’s Court made a judicialexplanation on assignment of burden of proof of some sorts of cases, the provisionsdoes not made a general priciple that fits entire civil law, and the provisions givejudges way too much power in the field of assignment of burden of proof,so thatthis regulation weakens law principle of stability and law priciple of prediction.Through reflecting domestic priciples of burden of proof, author suggests our coutryshould build a system of principles of assignment that formal principle should be theprime priciple and substantive principle should be the secondary priciple. On the firstpart, author suggests the formal principles are law, judicial explanation and NormTheoriy, and the order of application is that the first priority is law, the second priorityis judicial explanation. On the second part author suggests substantive principleshould be the secondary priciple, and for increasing law principle of stability and lawpriciple of prediction, our country should build regular principles as possible as wecan.