The Specification Of Burden Of Proposition

The legal relationship of civil procedure lies in tripartite of the plaintiff, the defendant and the court. While emphasizing on the centralization of judicial power, we must pay attention to the two main points, the first one is the balance between the freedom of the parties and the responsibility of the judge, namely the balance between the litigation of the parties to promote civil procedure and the obligation of guiding the whole procedure by the judge. The second point is how to establish judicial authority and standardize the civil trial activities through more professional and technical legal method. The burden of proposition by the parties is a concept binding those two parties the obligation of posing and explicating the facts like burden of proof. As the basis of litigation, the basic facts should be timely advocated and specified by both parties, otherwise, the judge will regard it never been posed or delayed and reject to take it into account as elements of judgment.The adversary proceeding is the origin of the burden of proposition, while the latter restricts the former.On one hand, the rule of authenticity and rule of completely is the core of the burden of proposition which intendeds to prevent the rampant litigation, vexatious suit and false action. There is a certain degree of contradiction among the rule of authenticity, the rule of completely and the adversary proceeding, because in order to protect the procedural right as well as discover truth, the rule of authenticity demand 2 the parties state honesty, forbid misrepresentation or intentionally conceal adverse facts, as a result of which disturbing arrangement of focal points. The rule of completely request the parties shall not be conceal part of incomplete statements in violation of its subjective truth, their states will be considered improper.The specific of the burden of proposition, on the other hand, in addition to the modification from the connotation, also require the judge to exercise his right when the debate ability of the parties is insufficient. The law of Germany, Japan and Taiwan demands the judge to exercise their rights during verbal trial if the statements of the parties are not clear, inadequate or inappropriate, whereas the elucidate right now in China is still abstract and general, what important facts the parties need to claim in a specific case still need to be specified, how the judges should properly exercise their rights and powers has to be comprehended with the limits of burden of proposition, what’s more in different legal requirement or in the different process of the proceedings, the standards for judges to adjudicate are likely to change, for example, whether to allow the parties to come up with statement delayed? Are the parties allowed to carry on the preliminary proposals and defense? What is the standard of being punished? All of this questions will be discussed the following text.The burden of proposition by the parties appears to be a totally new concept, but the parties and the court’s task allocation has being paid close attention to theoretical and practical problems in the development in civil procedure law. And related questions such as the principle of good faith, issues checking procedure, pre-trial preparation procedure is the recent hot issues. How litigation process starts or ends? How to promote it with order? How the object of judgments forms? These are all important theories and practice problems need to be paid attention to and solved. The following text hopes to promote civil litigation activities to work orderly through explaining the burden of proposition by the parties. The relationship of all the parties and the judge, the changing standard of the theory in different procedure, and the relationship of civil law and civil procedure law, especially the localization application of the burden of proposition plays a supplementary role. In a word, the burden of proposition are extraterritorial concept like the burden proof, the use of which should take into account the coordination of civil law and civil procedure law.