On The Transfer Subjective Of Burden Of Proof In Civil Litigation

The transfer of the burden of proof is widely used by the court in judicial trial practice,but most judges do not really understand the difference between "the burden of proof in the sense of behavior" and "the burden of proof in the sense of result." On the one hand,the theoretical research on the shift of the burden of proof is very confusing;On the other hand,China's legislation does not make clear provisions on the transfer of the burden of proof.In judicial practice,the burden of proof is widespread,which leads to the conflict between theory,legislation and practice,and also makes the court have greater uncertainty and arbitrariness in judicial trial practice.As a result,many miscarriages of justice have seriously affected the judicial authority.The task of this article is to clarify the shift of the burden of proof in judicial practice;The concrete situation of the shift of the burden of proof is analyzed.The mechanism of the transfer of the burden of proof is analyzed and corresponding suggestions are put forward to improve it.In order to complete his appointment,this paper argues in the following aspects:The first part of this paper analyzes the theoretical study of the positive and negative views on the shift of the burden of proof.The reason for the confusion is due to the unclear understanding of the double meaning of the "burden of proof".After analyzing the double meaning of "burden of proof",we come to our own point of view,that is,the burden of proof in "the shift of burden of proof" refers to the burden of proof in the sense of behavior.The second part makes a study on the shift of the burden of proof in legislation and judicial trial,and draws some realistic problems such as imperfect legislation and unclear judicial practice.The third part analyzes the inner operating theory of the burden of proof,and makes practical use of the burden of proof from the causes of the shift of the burden of proof,the standards of the shift,how to shift and repeatedly shift,so that the shift of the burden of proof can be shown.The fourth part analyzes the realization mechanism that affects the shift of the burden of proof.From the aspects of presumption,obstruction of proof,and proof contract,the above factors will affect the shift of the burden of proof.The fifth part is the realization mechanism of the burden of proof transfer put forward its own ideas and suggestions to improve the content of the burden of proof transfer.