The "Good Faith" Elements Of Good Faith Own System’s Distribution Of Burden Of Proof

Both in the field of civil judicial theory and in judicial practice field, the scholars about the "good faith" in good faith system requirements how to distribute the burden of proof should view has been quite mixed. The purpose of this paper is to through the analysis of substantive law and procedural law two fields, tries to find out a more appropriate legislation in good spirit, more can reflect the civil procedure law principle of fairness and justice, and fully consider the parties concerned shall show that the distribution of the ease standards, in order to solve the current civil litigation practice areas have different requirements of "bona fide" burden of proof allocation standard of chaos.The first part of this article from the analysis of two cases with typical significance in the trial practice work, this paper summed up the case the disputes and differences of opinion, at the same time raises two opposing elements of "good faith" the burden of proof allocation standard. In the second part simply stated the substantive law in our country related laws provisions on the good faith system, and the "good faith" in good faith system elements in the understanding of how other countries and regions, and in good faith system in our country how to interpret the "good faith" elements are briefly analyzed. The third part introduces the basic theory of the burden of proof and the burden of proof distribution rules of the theory of evolution(including specification, dangerous area and probability), and briefly introduced the general principles on the allocation of the burden of proof in our country(that is, the principle of "who advocate who proof") rules of inversion and exceptional circumstances. In the fourth part discusses the legislative spirit of good faith, set up purpose and in good faith about Germany, Japan, Taiwan "goodwill" requirements how to distribute the burden of proof of the relevant laws and regulations or theoretical explanation, and in the end of this chapter, introduces the theory and judicial practice widely supported and using the distribution of the standard, that is in accordance with the general principles on the allocation of the burden of proof in China should be borne by the transferee "good faith" the elements distribution of burden of proof and the burden of proof allocation standard theory and legal basis. In the fifth part of this article, the author at the beginning of a comment articles based on the results of the case dismissed shall be borne by the transferee, the allocation of the burden of proof standard of "good faith" of the author claims shall be borne by the original holder of the elements of "good faith" the burden of proof allocation standard more rationality, and by comparing the two "goodwill" element of the burden of proof allocation standard form, is the author of this claim reasonable thoroughly analyzed. At the end of the article, the author from the two aspects of substantive law and procedural law, proposed to the "good faith" of the allocation of the burden of proof standard in legislative work to perfect the related Suggestions, and argues that in the current to be under the condition of complete legislation, gives judges discretion to "good faith" as the judicial practice department the burden of proof allocation temporary settlement mechanism of chaos.