On The Improvement Of The Security System For The Burden Of Proof In The Civil Procedure

With the civil judicial reform, the dialecticalism in China’s legislation of civil procedureis becoming more and more clear, it on one hand limits the authority of judge, let the partiesenjoy greater program initiative, but on the other hand, the responsibility to investigate andcollect evidence will be largely fell down to the parties, this is called the burden of proof. Inorder to make the successful completion of the burden of proof, it is important to set up acorresponding security system for the burden of proof. But Throughout the frequentphenomenon of difficulty which is about the burden of proof in judicial practice, it seems thecurrent legislative security provisions can not be a good support for the completion of theadduce proof. In other words, the limitation of ability on the adduce proof, largely due to thelimitation of security system for the burden of proof. Therefore, this paper will regard this asthe breakthrough point, researching the connection between the phenomenon of difficulty andthe limitation of the system, reflection on the problems of current system, referring to theforeign legislation, and looking for localization improvement suggestionsBesides the preface, the text is divided into four chapters.The first chapter discusses in three aspects on the basis of the security system for theburden of proof in civil procedure. Firstly, through the introduction to the theory of the rightto prove, illustrating the view that adducing belongs to procedural right,and discussing therelationship between the two concept, and then putting forward the conclusion that thesecurity system for the burden of proof is the requirement of the theory. Secondly, Startingfrom the standard of proof in our country’s existing, analysis of the current "high probability"standard of proof burden in origin and its dilemma, then explore its mechanism and scientificresponse function. Thirdly, discussing the system function of the system in the twodimensions of civil procedural which is equality and efficiency.The second chapter makes a summary and Reflection on the provisions of the existinglegislation in civil litigation procedure, and analyzes the problem of its existence. In general,the current legislation of security system for the burden of proof has formed a rounded system,but in terms of the right to collect evidence, the court assistance in taking evidence, copingmechanisms to spoliation of evidence and security mechanism of witnesses was still limited.In this regard, this paper affirms the advantages of the existing system, at the same time discusses the existing problems, and puts forward the necessity and possibility of the perfectto the system.The third chapter is a cmparative investigation section. This part begins from thelegislation of major countries and regions in two legal systems, first is the most typicalsecurity system for the burden of proof in common law system, which is called the DiscoverySystem. Then turn the view to the civil law system, researching the provisions that the judge’sinvestigation and evidence collection system, instruments order system, spoliation of evidenceand security system of witness in different countries and regions of civil law system. Throughtargeted to refer to different legal system, it will contribute to clarify the problems andperfecting direction in China’s Civil Procedure Law.The fourth chapter summarizes research material, put forward the improvement ofoperational to the existing system. Borrowing abroad experience, and based on the nationalconditions, putting forward four levels of recommendations and specific measures:to designthe evidence investigation order system, to standardize the evidence collection rules of judge,to optimize the exchange system of evidence, and to perfect the system of the spoliation ofevidence and the security system of witness. By these to form an effective and comprehensivesecurity system for the burden of proof, supporting the completion of responsibility for proofcitation.