The Foundation Of The Burden Of Proof

Burden of Proof is the core theory of civil litigation, plays a very important position in the civil litigation system, known as the backbone of the civil litigation. The distribution of Burden of Proof is the core of the core, Research and application of the distribution of burden of proof theory we must first clear the foundation of the Burden of Proof. This is the premise of the Burden of Proof. Many of our scholars have conducted in-depth study on the meaning, nature, distribution, and the role of the burden of proof, translated a number of foreign Monograph and Theoretical circles, but the distribution of Burden of Proof in particular the foundation of burden of proof based on little studied. Most practitioners also lack of understanding of the theory of liability systems. This leads to a mismatch between theoretical research and trial practice.This paper by combing the burden of proof theory at home and abroad, Try to clear China’s foundation of the burden of proof, To prove the theory of Burden of Proof and trial practice to better convergence, Play the central role of the burden of proof in a civil action。The article is divided into three parts:The first part, Introduced the basic theory of the burden of proof in order to form a more in-depth, comprehensive understanding on the foundation of burden of proof. First, expounded the meaning of the burden of proof. After analyzing the pros and cons of the various theories, pointed out that The concept acts of significance and the results of significance on burden of proof should be discrete. And should give up the burden of proof terminology has been used once. Explicitly affirmed the natures of the burden of proof are the results of the significance. Second, briefly summarizes the foundation of burden of proof based on content and properties, deepen the understanding of the burden of proof. Third, Discussed to prove that the function of the foundation of burden of proof. That proves the foundation of burden of proof is not only fair and reasonable distribution of the burden of proof, but also plays a huge role in promoting legal development and the contradiction between the stability and social development of the balance method. Finally, we summed up the Substantive Elements that determine the foundation of burden of proof.The second part, Introduced the theories of two legal systems, Combed the doctrine of extra-territorial foundation of the Burden of Proof. First, the course of development of the theory of the burden of proof in Germany as the main line, Made a detailed analysis of two legal theories. Negative facts in facts to be proved, the underlying facts with the excessive nature, Long-term resident in the dominant position, areas of danger, And advocate completely abandoned to the civil norm theory that the damage attributable theory, sets out in detail the advantages and disadvantages of these doctrines to prove the basis for the allocation of responsibilities. Modern Japan’s Burden of Proof in two representative doctrines-the correction of civil norm theory and interests of the measure theory a brief introduction, Japanese academic and theoretical circles which show the attitude of the country’s burden of proof is assigned based on that we can learn. Finally, the common law doctrine and judicial practice of the United States the burden of proof allocation basis, provides us with another problem-solving ideas and methods.The third part, raised the basis of China’s allocation of the burden of proof. China’s most important provisions on the Burden of Proof-Civil Evidence provides that the relevant provisions of the analysis one by one, China to prove the status of the allocation of responsibilities is based on a certain understanding, Prove some of the problems in the theory of the allocation of responsibilities, such as the double meaning of our country to prove the responsibility of discretion made a response to proposed solutions. Finally, China’s burden of proof allocated in accordance with system build, should be the form of the basis-based, supplemented by a substantive basis, The basis for forms of sexual norms, said the law, judicial interpretation, the burden of proof contract, Substantive basis for the application of strict conditions.