The Obligation Of Litigants To Clarify The Facts Of The Case

In the civil suit proceedings,the burden of evidence proposition and collection should in doctrine be allocated vertically between the court and the parties on the basis of doctrine of debate,and the burden of proposing and collecting evidence should be carried out horizontally between the parties according to burden of pleading and burden of proof.However,in the partial cases that the information of evidence is not subject to the burden of proof of the party,if we strictly apply the doctrine of debate and the distribution of burden of proof,and make the burden of proof of party who are unable to propose the evidences or with negative benefits,it not only lacks anticipated possibility,but also seriously damages the principle of equality of weapons and the realization of procedural guarantee.In this case,how to give the parties means of evidence collection to achieve substantial equality of weapons and enrich the integrity of evidences to ascertain the facts become a problem that the national civil litigation institution has to face and solve.At this time,the obligation of litigants to clarify the facts of the case emerges,which is originated in Germany and learnt by Japan and Taiwan later.The contents of the litigation on the facts of the claims and proof activities are considered to be the favorable means to remedy disadvantages of doctrine of debate and distribution of burden of proof.At the same time,the principle of equality of arms,the principle of good faith,the obligation of litigation promotion and the procedural guarantee provide strong theoretical support.However,with an increasingly emphasis on the transition of litigation model and the doctrine of debate and the distribution of burden of proof in China,there are problems that exaggerate functions of distribution of the burden of proof and ignore parties deficiency of evidence collection and the weakness of related systems,which make the claimant hard to protect rights in the case of evidence bias.Throughout the changes in the legislation of civil procedures in our country,there are many shortcomings even though there are means to restore the substantive equality of both sides,which provides the space for the theory of the obligation to explain case of the litigant.At the same time,on the basis of ensuring internal building,by enlarging the means of evidence collection of the parties,strengthening the explanation right of the judge andthe obligation of attending the trial of the parties and enriching the obligation of the parties statement to make the maximization of the functions of the obligations to explain cases of litigant.This article contains four parts except the preface and the epilogue:The first part is an overview of the obligation to explain cases of litigant.First,this article finds the origins of the obligation to explain case of the litigant,and clear the concept of the obligation to explain cases of the litigant.Second,based on analyzing the different types of the obligations and making an exception of the substantive obligation,it shows that the viewpoint of exception is more suitable for the judicial practice in our country.Then identify the relationship between the obligation to explain cases of the litigant and the burden of proof,and clarify the obligation which is a useful complement to the burden of proof.Finally,it discusses the function of the obligations to illustrate the significance of the theory.The second part introduces the theoretical principles of the obligation to explain cases of litigant.Taking the principle of equality of weapons as the theoretical cornerstone,the principle of good faith as the presence space,the specific obligations of the parties as the internal support and the obligation of litigation promotion and the procedural guarantee as the external assistance,it is to provide a strong theoretical support for the obligation to explain case of litigant.The third part focuses on the study of the obligations to explain cases of litigant in our country.Clearing serious unsymmetrical evidence problems in our judicial practice,we should take the analysis of limitation of the existing countermeasures as the breakthrough point in order to clarify the necessity and feasibility of introducing the obligations to explain cases of litigant into our country.The fourth part is the planning of the obligation to explain cases of litigant in the prospect of China.On the basis of making an exception in the obligation to explain cases of litigant,we should clear the scope,restrict the conditions,grasp the contents and draw the boundaries,then we could promote and guarantee the building of the obligation to explain cases of litigant through the improvement of relevant supporting measures.