The Reconstruction Of The Model Of Burden Of Proof In Civil Procedure -- Reflection On The Dual Meaning Of The Burden Of Proof

The burden of proof is one of the most basic problems in the civil procedure law. The academic controversy about the burden of proof is quite a lot. Since the birth of the dual meaning of the burden of proof, it has gradually become the mainstream theory of continental law system. The theory also received praise and accepted by the theory and practice in China. Academic research is focused on the introduction and reception of its theory controversy, less from the construction of the model of the dual meaning of the burden of proof theory, and combined with judicial practice in juridical practice, to research on the theory and practice of the dual meaning of the burden of proof theory. Therefore, there is no timely response to the defects in the theoretical model of the dual meaning of the burden of proof, not to mention the establishment of a suitable model for the application of the burden of proof in civil litigation in China. Therefore, to prove that the dual meaning of burden of proof from the theoretical origin and foundation, combined with China’s judicial practice. On the basis of this, from the dual meaning model of burden of proof and the drawbacks of practice, integrated proof responsibility theory, establish suitable to model of burden of proof of the reality of China’s trial, and the actual trial process and practical case examples to analyze the burden of proof after reconstruction.This thesis is divided into five parts to elaborate the re construction of the burden of proof in civil procedure.The first part is based on the historical origin of the dual meaning of the burden of proof, researching the generation and shaping of the theoretical model, explaining the theoretical basis of the dual meaning of the burden of proof, so as to construct the theoretical model of the dual meaning of the burden of proof.The second part is from the legislative, judicial and other aspects of applicate situation of the dual meaning of the burden of proof in our country’s civil lawsuit. Compared with the dual meaning of the burden of proof to find the obstacles in reality. This part begins with the judicial practice, review the process of the civil trial, the court issued judicial judgments of the micro and macro analysis. And then return to the legal text, explore the relevant provisions in the legal system on the dual meaning of the burden of proof. Summarize the related issues of the dual meaning of responsibility in practice operation. As a starting point for the study, this thesis is to find a realistic and practical foundation, and to prepare for the reconstruction of the model.The third part is a further prove of the core of the burden of proof, criticizing the dual meaning of the burden of proof in the theory aspects. This part includes the analysis of misuse of the concept, the difference of the theoretical research, the contrary of the system purpose and the limitations of the theory. An in-depth analysis of the theoretical obstacles caused by the dual meaning of the burden of proof. This part is the theoretical basis for the reconstruction and application of the theoretical model.The fourth part is to analyze the negative function of the dual meaning model of the burden of proof to the practice. This part mainly analyze the paradox caused by the dual meaning model to theory and practice, to prove that the dual meaning of responsibility model in judicial practice to judge the use of problem and the party’s identity disorder were analyzed to demonstrate the negative effects of the dual meaning of responsibility model to the real practice. At the same time, the paper summarizes the problems of the application of proof responsibility in practice, and makes the practical support for the reconstruction of the liability model.The fifth part is to integrate the concept of burden of proof on the basis of model reconstruction and practice, this part is the core of the thesis. This part mixes the practical problems of the second and fourth part with the theoretical problems of the first and third part together, bridges the paradoxes of the theory and judicial practice in the important issues. Based on the summary of the application of the burden of proof in the process of the trial of the case and the root of civil litigation system to reconstruction the model for burden of proof, make up the problem between the theory and practice. At the same time apply the theory to the typical case, realization the practical value of the theory. In this paper, through the above five parts of the exposition, the layers of the problem of the burden of proof expanded gradually, and combine the practice and theory, bridging the practice and theory gap of the problem.This has a certain reference significance to promote the understanding of the above concepts of the trial judges and prove the flexible application of the concept, and in order to prevent the parties to produce unnecessary litigation tired. As far as possible to ensure that the case of the fair and equitable, establishing the credibility of the judiciary.