Researches On The Allocation Of The Burden Of Proof In Tort Action For Joint Dangerous Conduct

As a kind of special tortious conduct whose injurer is uncertain,the opinions upon the allocation of the burden of proof of joint dangerous conduct are various.Tort Law has provided guidelines for the judicial decision of joint dangerous conduct at a certain degree.However,the provisions upon the the allocation of the burden of proof in joint dangerous conduct lawsuit of Tort Law is too vague,which not only causes the non-uniformapplication of law,but also leads to the confusion in judicial practice,and arouses widespread and lively discussionin the academic.With desire of uniforming the application of law and resolving the dispute reasonably,this paper integrates the theories of substantive law and procedural law,uses comparative and empirical research methods,focuses on optimization of the construction of the allocation of the burden of proof in joint dangerous conduct lawsuit.Besides the introduction and conclusion,this paper has been divided into three parts,a total of more than 30,000 words.The first part mainly talks about the realistic reflection of the institution.On the basis of studying the general provisions of the the allocation of the burden of proof,this section explores the special provisions of the institution,and concludes that the article 10 of the Tort Law has a tendency to strengthen the burden of proof of the injurers.In addition,this part analyses and statistics hundreds of judgments,finding that the applications of the rule of allocation of the burden of proof are different in joint dangerous conduct lawsuit.Finally,this section cards the main points of the allocation of the burden of proof in the lawsuit of joint dangerous conduct.The second part examines the institution in two legal system,aiming at making the comparison between them.The legislation of countries and areas in the civil law system has the same strain,which both of them adopt the way of legal presumption to reduce the burden on the victims.In the common law system,there has been no unified rule of the allocation of the burden of proof,so as the institution of joint dangerous conduct.In the lawsuit of uncertain cause,judges relieve the victims by the way of shifting the burden of proof or the objects of proof created by judicial precedents.The third part mainly discusses the optimization of the institution under the Tort Law.The detailed arguments are as follows.Firstly,in each joint conduct lawsuit,it is necessary to carry out concrete analysis for the allocation of the burden of proof of the fault according to the types of different cases,rather than adopt a one-size-fits-all approach in judicial practice.Secondly,the allocation of the burden of proof of the causation should be based on the legal presumption,and realizes the equalization of the weapons between the parties.Thirdly,the application of the rule should follow the legal hierarchy,and the discretion of judges should be limited strictly.Fourthly,in the context of legal presumption,proving the real injurer is not the only way for the defendants to be relieved,contrarily,they also should be allowed to exempt from liability by proving the inexistence of the causation.Fifthly,in joint dangerous conduct lawsuit,the right of judges interpretation and other supporting mechanism should be further improved,with a view to maximize the utility of the system.