A New Study On Basic Theory Of Civil Burden Of Proof

Burden of proof is the core issue of civil law and civil proceedings, which is recognized as backbone of civil litigation activities by academics and practitioners. Both scholars from Anglo-American law countries and Civil law countries have done much in-depth study about burden of proof for over a century, and research findings about the nature of burden of proof, the structure of burden of proof, and the allocation of burden of proof are especially remarkable. The proposal of burden of proof stratification theory is a major breakthrough:Burden of proof is divided into two parts, subjective burden of proof and objective burden of proof. And the understanding of burden of proof have got further deepen by the new theory, simultaneously, the new theory also resolved the controversy about the nature of burden of proof. However, the dynamic process of the functioning of burden of proof was not adequately taken into account, as burden of proof was merely divided into two parts theoretically. At the same time, the new theory also made the original terminology no longer able to meet the requirements of the emerging theory. The allocation of burden of proof is the key issue of burden of proof, and legal requirements classification doctrine and its corrected doctrines are the most powerful tools for solving this problem. Yet, there were many deficiencies legislation and judicial about the allocation of burden of proof, and few theoretical achievements were reflected in legislation, and the difference between objective burden of proof and objective burden of proof were not clearly distinguish. Legislative defects and the lack of operational capacity of a significant proportion of judges, are both of the causes of the situation of not standardized application of burden of proof.Although, great progress have been made in the field of theoretical study on burden of proof, many unsatisfactory still exists in basic theory of burden of proof. Usage of terminology of burden of proof, dynamic properties of burden of proof, the importance of time element of burden of proof, all the above are among issues those needs improvements urgently.1. Terminologies being used can no longer meet the requirement of modern theories about burden of proof. Terminologies of burden of proof used today are always much too academically and abstractive to cover the meanings of burden of proof entirely. It cannot meet the need of the rigor and concise of legislation, and also confused judges and the public, and brings misleading and hinder effects to the development of theoretical studies on burden of proof. In the area of theoretical studies, adoption of new terminology newly created or introduced from different jurisdictions, formation of new habits of using rational terminology, redefine of terminology used currently are three of those means that are preferred to make up. Academically and abstractive terminology are inappropriate during the operation of law, especially those terminology are even misleading. Concise and straightforward sentences are preferred in legislative activities, at least before a more appropriate was proposed and widely accepted.2. The functioning of burden of proof is a dynamic process, not a static theory written on paper. The theory of burden of proof stratification is about the structure of burden of proof, in which the dynamic nature of the functioning of burden of proof was ignored. From a dynamic perspective, the two parts of burden of proof according to the theory of stratification are not properly echoed to each other logically, a new part about actions taken for judicial proof is needed for the perfection of the theory of burden of proof stratification. Since the functioning of burden of proof is dynamic, time element is playing an important role during the functioning of burden of proof, therefore, sufficient attention on time element is necessary. Different stages of the functioning of burden of proof corresponds to different time elements of judicial activities. Those time elements regulates the subsisting of burden of proof, regulates the change of burden of proof, regulates the effectiveness of evidence, and regulates the final vesting of burden of proof.3. In-depth study is still needed in theoretical and practical area of burden of proof. Legal requirements classification doctrine and its corrected doctrines have earned recognize worldwide. Other theories proposed on the basis of refuting legal requirement classification doctrine, such as dangerous areas doctrine and probability doctrine and damage attribution doctrine, also have caused huge repercussions. Moreover, there are many exceptions in addition to the allocation principles of burden of proof, such as inversion of burden of proof, relief of burden of proof, and contract of evidence. However, the systemic of the theory of allocation of burden of proof is still quite weak. Establishing corrected legal requirements classification doctrine as basic principle, taking refuting doctrines as addition in particular situations, define exceptions in legislations, are all necessary methods to strengthen the systemic of allocation of burden of proof. Principle regulations and provision to clarify the different parts of burden of proof are lacked in Chinese legislation, and that is why a rationally and systemically designed doctrine of allocation of burden of proof is needed. And division between substantive law and procedural law, legislation and judicial interpretation are necessary, so as to form a strict system and structural integrity legal system of allocation of burden of proof. Judicial procedure is where the allocation of burden of proof shows its significance directly and realistically, both the dynamic nature of burden of proof and the lack of legislation are giving grim test to the professional level of the judges. Thus, to better accomplish the allocation of burden of proof, we need to improve the theoretical level and professional level of the judges, on the base of fully awareness of the dynamic nature of allocating burden of proof and perfecting related legislations.