On The Distribution Of Burden Of Proof In The Demurrer

The distribution of burden of proof is a difficult problem in procedure law, which relates to two major areas of the substantive law and procedural law. In recent years, scholars started from the substantive law to discuss the problem of distribution of burden of proof, and get more practical results. Demurrer is a defense system chance gave by law to realize the balance of interests of both sides and the equality of opportunity for the both. The distribution of burden of proof of the demurrer will affect the validity of the act of defense and determine the victory or defeat of litigation. Therefore, the problem of distribution of the burden of proof in the demurrer is gradually entering the field of study of scholars, which also receiving attention in judicial practice. But because of the complexity of the concept of demurrer problems, the theory and judicial practice are often unable to accurately define the demurrer. The confusion of demurrer and deny, counterclaim and other Litigation strategy, resulting in the difficulties and mistakes of distribution of burden of the proof.This article will through analyze the concept, characteristic and value of the demurrer to find the identification method of defense. The article will make attention to the influencing factors on the distribution of burden of proof of the demurrer and discuss the method of it, in order to provide the reference for the judgment of the distribution of the burden of proof on the demurrer.Besides the introduction and conclusion, this article consists of four parts:The first part mainly introduces the basic theory of demurrer and the burden of proof. This part will analyze the difference of demurrer and other concept, such as deny and counterclaim, to find the characteristic of demurrer itself and classify the patterns of demurrer. Based on these, this part will analyze the value of demurrer in the implementation of equity value, and safeguard the litigant lawsuit status equal and reasonable distribution of the burden of proof. The second part mainly analyzes the method of the identification of demurrer. This part from four dimensions, sources of demurrer facts and characteristics of demurrer in form and contents of demurrer and the judge deductive reasoning, to discuss the method of identification of demurrer, it will lay the foundation for scientific distribution of burden of proof.The third part mainly discusses the influencing factors on the distribution of burden of proof of the demurrer. This part talks about four factors, the fact of demurrer and the judge’s interpretation and the integrity of the law and the roles of the parties, which influence the distribution of burden of proof of the demurrer. On this basis, in the concrete litigation, we should insist on the basic principles of the distribution of burden of proof, and consider the ability of producing proof to make a reasonable distribution of burden of proof.The fourth part mainly discusses the application of the distribution of burden of proof in the demurrer in our law. This part focus on the distribution of burden of proof in the demurrer in the contract dispute, partly discuss the distribution of burden of proof rules for demurrer on tort liability and other legal relationship. These discuss will provide reference for the parties involved in litigation and the judgment for the distribution of burden of proof.The clarification of the concept of demurrer, the effective identification of demurrer and the establishment of the rules of distribution of burden of proof will enrich the basic theory of demurrer. It will also provide litigation strategy reference and suggestion for the parties, and provide scientific basis responsibility for judge and establishing the system foundation for justice and procedure realization of justice.