Distribution Of Burden Of Proof In Civil

The burden of proof is leading the losing consequences when the party cannot prove his claim in civil litigation, its importance is allow all doubt that the distribution of burden of proof decides "life and death" of parties. "Who claims, who proofs" looks at a glance, but it is hard to be applied in judicial practice for the reason that we cannot distinguish the nature of "claim" easily and "proof just means "Provide evidence". In contrast, the burden of proof in foreign law, mostly including the interpretation of the risk of losing, t is considered to be better. The lack of theoretical research reflected in the legislation, which indirectly led to the problems that the judge’s discretion rights is overused and it’s litigation surprise usually focused on parties. So the research on the burden of proof, is a traditional and often new topic. This article takes essential attribute of distribution the proof responsibility as the breakthrough point, analyzing the problems in the judicial practice. I tried to put forward the related proposal for the problems which urgently await to be solved. Ideas as follow:First of all, pointed out that China’s traditional distribution regulations "who claims, who proves "exist a narrow applicability issues, the fallacy has seriously damaged the interests of the litigation which should be corrected. Secondly, comparing with the foreign law about the meaning of burden of proof, the laws in China have no normative interpretation for the burden of proof, so the understand of it remain in the subjective aspect. The value tendency of the distribution of burden of proof cannot express the function of referee, guidance, and economic benefits.Also, comparatively studying on the similarities and differences between the theory which belong to the civil law system and the common law system about "the burden of proof. And then analyzing in-depth the research, legislation and judicial practice condition of "burden of proof " in China. For the reasons that we started a research in this field late, reference became a necessary way to improve our theory of burden of proof. For that China is the civil law country, so it came very naturally that China inherited the theory named The Norm theory. Anyway the common law had produced profound influence to the legislation and judicial responsibility distribution in China. As it turns out, integration inevitably produce conflict. We had found the problems that the judge’s discretion rights is overused and it’s litigation surprise usually focused on parties. This behavior harmed the proper legal procedure right of the parties. Investigating its reason, it was mainly due to the legislation blank the lack of procedure regulation. At last, pointed out that we have to make the "principle" as the guidance for improving the system on "distribute of burden of proof ".In order to ensure the normal function of it, I put forward a proposal of establishing this following five principles:Legal principle, judicial activism complement principle, fair principle, the principle of honesty and credit and the principle of human rights. The new judge discretion pattern in legislation and the discretionary interpretation program in procedure will contribute to the improve the distribution system of burden of proof. Based on the above kinds of substantive issues raised, I propose the establishment of the new judge discretion mode, the program Interpretation discretionary programs and the burden of proof case guidance system, will impetus to improve the system of "burden of proof.