Discretion Of Judges’ In The Allocation Of Burden Of Proof In Civil

The distribution of burden of proof is the core of the system of proof in the whole civil procedure,which has a great important impact on the fact finding of judge’s. Some laws clearly defined the allocation of burden of proof of certain types of cases. Besides, Supreme People’s Court "Several Provisions On Evidence In Civil Litigation "Article VII is generally to be considered providing the judge discretionary powers in the field of the allocation of burden of proof, which gives the judge discretionary powers in alloacting of burden of proof in certain circumstances. Generally speaking, there is no room for the discretionary powers under the legal rules while the writer considers that this article actually gives the judge discretionary powers when the general rule is not applicable to the special case. This discretionary powers exists in theory and practice. But as the lack of operability of the specific standard and the different understanding of the article the judge using the discretionary powers is under the state of disorder. Besides, as all kinds of new relationship of the law is appearing now and then, the Article VII can not satisfy the requirement of the civil judgement. Therefore, it is very important to research on judge’s right of discretion in alloacting of burden of proof.In the article, the writer introduces and comments on the concept of the judge’s right of discretion in allocating of burden of proof, the necessary for judge to exercise the right of discretion and the existence condition of the right of discretion through a real case in civil judgement practice. what’s more, the writer provide the certain improvement measures for the judge in the exercise of discretion in the trial of civil cases.The article is divided into five parts except the preface and epilogue.In the first part, based on the analysis of the real case in the trial of civil judgement, the writer raises a serises of fundamental questions of the burden of proof.The second part discusses the basic theory of the judge’s discretion in the allocation of the burden of proof, in which the writer comments on the concept and the necessary of the judge’s right of discretion in allocating of burden of proof.The third part discusses the allocating of the burden of proof of foreign countries. By means of inspecting the civil law and common law countries, the writer concluds the good experience for our country.In the forth part, the writer inspects the current judicial status of the exercise of distribution of burden of proof. In this part, the writer introduces and comments on the three main existence forms of judge’s right of discretion in allocating of burden proof. What’s more, the writer analysis the reason why the using of the judge’s right of discretion in allocating of burden of proof is not standard.In the last part, the writer discusses how to control the judge’s right of discretion in allocating of burden proof. In this part, the writer raises the improvement measures of discretionary power from four aspects, such as perfecting the rules and perfecting the procedure ect.