The Research Of The Allocation Of Burden Of Proof In China's Labor Dispute Cases

China's current law has incorporated the allocation of burden of proof in labor dispute cases into civil procedural law.However,there is equal relationship as well as affiliation between parties with labor relations,which leads to the differences in the ability to present evidences.If simply based on the allocation rules of burden of proof in ordinary civil disputes to resolve labor disputes between employees and employers,this is neither targeted nor practicable.Therefore,we have to explore how to perfect the allocation rules on burden of proof in China's labor dispute cases,making it meet the demands of China's judicial practice.According to the current research and discussion,studies on allocation of burden of proof in China's labor dispute cases focus on either theoretical interpretation or case analysis,instead of from a perspective of empirical analysis.Considering that the number of labor dispute cases in the courts of all levels around China is pretty high,and Shandong province as an economic powerful province,owns lots of labor disputes with different varieties and abundant evidences,it is more representative as a sample,thus this paper chooses labor dispute cases ruled in 2016 in Shandong province as research object.Through the method of empirical analysis,based on horizontal comparison of rulings and judgments in courts of' first instance in Shandong province,this paper finds that problems of the allocation of burden of proof in China's labor dispute cases mainly exist in the following three aspects.From the view of burden of proof,parties confront the difficulty in presenting evidences because of the bias of evidence and the non-formation of evidence.From the view of applying rules,Article 6 of Evidence Regulation does not explicitly state the specific content of shifting burden of proof because it is too general and vague;the role of justice and good faith principles is not prominent in the allocation of burden of proof;courts of all levels do not normatively cite the rules on the allocation of burden of proof in labor dispute cases.From the view of legal regulations,the rules and regulations that can be cited by courts are not complete;no matter how the rules and regulations are modified,provisions cited by courts don't change much.Through a vertical comparison of the rulings and judgments in courts of all levels in Shandong province,there appears a new problem:the misjudgment rate in the first or second instance is relatively high;judges wrongly assigned the burden of proof;the particularity of some cases leads to the possibility of unfair application of existing distribution rules.The main cause leading to these problems can be attributed to both the legal regulations and legal practice in China's labor dispute cases.From the level of legal regulations,rules under the classification of legal requirements do not clarify the bias of evidence and the non-formation of evidence;there are no complete,meticulous and specific laws and regulations interpreting the allocation rule of burden of proof,and the existing ones are disperse and narrow.From the level of legal practice,judges may make unjust judgments because they do not understand the relevant allocation rule deeply;judges do not pay enough attention to the normative application thus some laws and regulations are not applied normatively.Therefore,in order to solve these problems,measures to promote the fair operation of the justice are as followed:continuing to insist the classification of legal requirements;improving the relevant laws and regulations of burden of proof with regard to fairness and rationality;taking various methods to regulate judges to normatively apply the allocation rules of burden of proof,and enhancing the trial quality;adopting the high degree of probability as the supplementary application rule to apply,with anticipation that will be beneficial for promoting allocation of burden of proof in China.