On The Civil Case Proceedings Prove Use Of The Allocation Of Responsibilities Rules

Distribution is important to burden of Proof which is indeed the core of civilprocedure evidence system in both theory and practice. It determines when theauthenticity of the facts in the case is unknown, which party provides evidence andwhich party bears the consequences of losing. As to theories about distribution of burdenof Proof, based on the view of Roman jurists, more theories are proposed. The commonlaw system has always insisted discretion of judges on characteristics of the case.Theories about distribution of burden of Proof in the continental law system havechanged their strict attitude to pursue the stability of law to support discretion of judgesto some extent. Shortcomings of Statute are the ambiguity of legal language and the lagof legal content. Discretion of judges in distribution of burden of Proof can make up forthe defects of statutory system. In new civil and commercial cases, judge distributionthe burden of proof can promote society development instead destroying its vigor andvitality, without jeopardizing the stability of civil law and the rule of law. Individualjustice is often the expense of the pursuit of universal justice because some aspects oflife or a particular detail are neglected. Judge distribution the burden of proof canbalance the following of law and individual justice. Judge distribution the burden ofproof is the core of the Judicial Activism. It encourages the creativity of judges andestablishes a link between Legislation and judicature, thus highlighting the JudicialActivism. In civil and commercial cases, by comparing the relative strength of bothparties, judge distribution the burden of proof to the stronger to reduce the burden of theweak side, and achieve the purpose of protection of the weak, thus developing the spiritof the modern civil law. It also helps to find the fact of complicated cases quickly todraw conclusions and improve judicial efficiency. Only the authenticity of the facts tobe proved is unknown and the law does not provide rules for allocation of the burden ofproof or the use of general rule may lead to unfair verdict, can judges exercise the power. The judge should follow the principle of fairness, good faith and cite litigation benefit,considering the spirit of the legislation and policy orientation, whether the parties ofgood faith, the proof capabilities of the parties and the evidence and the probability ofthe alleged facts, etc in the exercise of discretion. Discretion of judges about distributionof burden of Proof should be legislated. Trial level and procedures must be stipulate indetail and steps should be taken to prohibit judge abuse of the power.