The Judge’s Right Of Discretion In Allocating Of Burden Of Proof

First, for judicial discretion in allocation of burden of proof, current substantive law and procedural law does not have specific provisions, judges rely only on judicial interpretation to resolve the judicial practice in the allocation of the burden of proof issue, is clearly not enough. Secondly, in judicial practice, because the judge improperly rules apply to the allocation of burden of proof and to allocate the burden of proof between the parties that caused the error, resulting in the party because of burden of proof cannot be lost. Furthermore, not strictly applicable conditions and operating considerations, the judge in the exercise of judicial discretion can easily lead to the occurrence of the phenomenon of judicial abuse of power. This would adversely affect the fairness and justice of the judiciary in our country. Therefore, safeguard judicial fairness and justice, solve disputes, secure case balance, protect the legitimate rights and interests of litigants and safeguard social harmony and stability development point of view, research on judicial discretion on the distribution of burden of proof have important practical significance.This article is divided into the allocation of the burden of proof of judicial discretion theoretical overview of the empirical study, system improvement recommendations of three parts: The first part by definition on the distribution of burden of proof and the burden of proof to arrive at the connotation of the distribution of burden of proof in judicial discretion. And conducive to fill legal gaps to solve disputes, protect the entity just to achieve balance of two areas, detailed allocation of burden of proof of the rationality of the existence of judicial discretion.The second part through case studies on the distribution of burden of proof in the form of a case study of the application of judicial discretion, and then summed up problems in the allocation of burden of proof in judicial discretion.The third part combined with recommendations from the legislative level, the operating specification level, level three protection mechanisms to improve the system before the burden of proof of judicial discretion.