On The Burden Of Proof About The Incomplete Debt Performance

Incomplete payment is also known as incomplete performance, which is an important and controversial issue in the theory of civil law. It means that although the debtor has performed in accordance with the contract, the performance does not meet the purpose of the debt. While legislation of our country has not clearly defined the concept of incomplete payment, its specific content mainly scattered in the "contract law", such as article 107 provided if the debtor fails to fulfill the contractual obligations he shall bear the corresponding liability for breach of contract. Article 111 and article 122 also can be regarded as the regulations about flaw payment and injuring performance. In addition to discussing it based on law of obligation, from the view of procedural law, the distribution of the burden of proof on incomplete payment has attracted much attention in the academic field. The burden of proof is the core of the evidence system, so its distribution is reasonable or not will directly affect the fairness of the civil litigation system. Therefore, research in this paper can contribute to improving the distribution system of civil burden of proof in our country, accelerating the civil procedure legislation to guide the practice, and guiding the people’s court to try civil cases fairly and duly.In addition to the introduction, this paper consists of four parts.The first part mainly discusses the basic theory of incomplete payment. as one situation of debt nonperformance, it was known as active infringement of creditor’s rights, which was initially proposed by German jurist Staub; subsequently, Japan and Taiwan region followed the German theory expanded discussion of related issues. The classification of incomplete payment can be developed according to different standards, such as the incomplete payment of debt, the type of violated obligations and the results of the damage. Even though there are different views about its constitute elements, by analyzing its basic concept, the constitutions should be the debtor has already paid, the payment is incomplete and it can be attributed to the debtor.The second part describes the theory of the incomplete payment’s burden of proof in Germany, Japan and Taiwan region. The most controversial problem is about the third element. German scholars advocate the debtor shall bear the burden of proof, and Japanese scholars agree with it. Because it is debtor’s disclamier. But scholars in Taiwan region think that according to the general principles of allocation of burden of proof, the burden of proof shall be borne by the debtee. But in specific cases, if the inversion of burden of proof appears, debtor will bear it.The third part first discuss the basic theory of burden of proof in civil litigation, and then analyzed the current situation of the distribution of burden of proof about incomplete payment in our country. Burden of proof in civil litigation, is refers to the parties shall provide evidence to prove their claim in the litigation. if the facts of the case are still unknown at the end of the case, the party who advocates the fact will face the risk of losing the case. There are many theories about the distribution of burden of proof, but in China, theory of classification of legal requirement is still on. At present, in our country there is no law stipulating about this issue, so the proof standards should be the high probability standard of proof. if the evidence is not evenly distributed, it may also consider to reduce the standard of proof. Therefore, the debtee should bear the third element’s burden of proof, but there is also having the situation the burden of proof upside down.In the fourth part, the author puts forward some suggestions by analyzing some cases. Because the court’s view of the distribution of burden of proof is different, different litigation stages will produce different judgments. In order to improve the distribution, first of all it should follow in the general principles. Then for lightening the burden of proof of the vulnerable, the rule of thumb or apparent proof of principle should be used. and the proof responsibility transformation, the obstruction of evidence theory and the case illustration obligation also can help the judges finally find the truth.