Discretion Of Judges In The Distribution Of Burden Of Proof In Civil

Allocation of the burden of proof in civil evidence system is the core of the civil trialfindings of fact starting point. Supreme People’s Court "on the Civil Evidence provides that"Article VII judge formally established the allocation of responsibilities in the field of proofdiscretionary powers, it can be said, how judges discretion on the allocation of the burden ofproof has a direct impact, thereby determining the findings of fact in the civil trial andverdict. Therefore, the discussion of judicial discretion in the allocation of the burden ofproof in the use of the system has a high practical value.As a theoretical basis vague laws and practice standards careless lack of other reasons,the judge discretion to use basic state of disorder, the judge in the allocation of the burden ofproof under what circumstances, knowledge of how to allocate the burden of proof is notuniform in practice broadly appeared complementary breakthrough type oriented andnegative type and other types of use of the four modes, resulting in similar cases differentsentence, judges and other parties to litigation raid serious detriment of the judicial authority,stability, predictability and trustworthiness. In addition, the judge discretion limiting factoris too small, it may cover up corruption in the judiciary is to provide a " legal" means legalenvironment is not conducive to the healthy growth, it is necessary to regulate and restrict.This paper tries to analyze the distribution of the burden of proof under the definition ofjudicial discretion, the main features, the use of space and the process of evidence discussedin the discretion of the judge assigned the burden of proof applicable in the field of thepremise and exercise requirements. Combined with case studies summarized practice ofjudicial discretion to use four types, summarized in the legal practice of the outstandingproblems, and then refine and from the legislative program to create two, and explore waysto establish legislation to supplement the main type, break type discretion of the judge,supplemented by model, as well as create the Explanation of discretion procedures forallocation of burden of proof under the system of judicial discretion improvement measures.This paper is divided into four parts:Chapter I: inductive analysis allocated the burden of proof under the rules of judicialdiscretion Definition and main features of the discretion of the judge discussed the burden of proof allocation rules in the use of space to explore examples of ways to use the discretion ofthe judge assigned the burden of proof when the process of free evaluation of evidence for thebasis of this paper.Chapter II: Analysis of judicial discretion should summarize how: From the form ofallocation criteria and substantive point of allocation criteria summarized judicial discretion isapplicable only if and to summarize the currently applicable only if the dispute for the largerthree perspectives, as discussed later pave the way; from the principle of fairness, good faithand Litigating ability summarizes three aspects of the exercise of judicial discretion required.Chapter III: Freedom of practitioners allocated the burden of proof to the judge ’sunderstanding and Analysis: Indicate practitioners how to use our discretion of the judgeassigned the burden of proof has four modes, which are complementary type, leading, break-and negative-type and to review cases and to analyze their way to reveal the use of judicialdiscretion situation and prominent problems.Chapter IV: Legislation and procedures created from two aspects to explore on theburden of proof distribution system of judicial discretion under the regulation andimprovement measures. The establishment of judicial discretion and where the use is thetrend, so the process of applying norms are focus of this paper. This chapter focuses on theestablishment of supplemental type-led breakthrough type of auxiliary mode of judicialdiscretion, and the discretion of the Explanation to establish procedures and other issues.