Obligation To Clarify In Japanese Law

With the advancement of society,economic development and the degree of specialization is enhanced,in evidence-biased cases,relying only on the burden of proof can not achieve the fairness of litigation,and the obligation to clarify is one of the important means to reduce the burden of proof,under the premise of not destroying the distribution of objective burden of proof,the party is urged to present evidence that it has in its power to identify the facts of the case,to prevent the hollowing out of the evidence investigation and the excessive application of the objective burden of proof.Japan,which has a similar social background,learns to understand the obligation to clarify theory of Germany,some scholars represented by Ryoshiro Kasuga and Hiroyuki Matsumoto have conducted in-depth discussions on the obligation to clarify theory,and developed the responsibility of the lawsuit(Ishida theory),the obligation to clarify in the medical negligence lawsuit(Nakano theory),the obligation to clarify of the doctrine(Kasuga theory),the specific factual statement = the obligation to present evidence(Matsumoto theory),the narrow obligation to clarify(Ito theory)and so on.Most of these doctrines have the doctrine of clarifying obligations in exceptional cases,The Kasuga theory,Matsumoto theory,and Nakano theory all advocate the application of the solvency obligation within the limited scope of the evidence-biased case or the medical negligence lawsuit,Ito theory believes that the scope of application of the clarification obligation is narrower and only applicable to individual special cases,rather than typed cases,he advocates that it is more appropriate to apply the burden of proof in typed cases.Only Professor Ishida's lawsuit is responsible for claiming that both parties are responsible for unlimited litigation in the course of litigation,which is a general obligation to clarify.Japan's judicial practice attitude towards the obligation to clarify is an obligation to clarify the case,and it is mainly applicable to evidence-biased cases related to specialized science and technology.The Japanese academic circles acknowledge the meaning and value of the obligation to clarify theory,but the scope and elements of the obligation to clarify have not yet been unified,so the interpretation of the case is not consistent.The Yifang Atomic Energy Power Generation Lawsuit and the Northeast Electric Power Iwakawa Atomic Energy Power Generation Lawsuit are generally considered to be the application of the obligation to clarify in the field of atomic power generation,and the latter embodies represent that the party who responsible for the burden of proof should provide relevant clues in the obligation to clarify theory.The Changliang River Estuary Construction Stop Lawsuit is a practice case that the scope of application of the obligation to clarify extends from atomic power generation cases to cases involving specialized science and technology.The case of aircraft accident damage compensation is a case involving special scientific and technical fields,in addition,it also reflects the relationship between the order filed by instrument and the obligation to clarify.Taxation litigation cases do not involve special science and technology,only the evidence is biased in the case,reflecting the expansion of the scope of application of the obligation to clarify.The four elements of the theory of obligation to clarify advocated by Professor Kasuga are:1.the party with the burden of proof is in a position of isolation from the factual relationship of the case;2.the party who bears the burden of proof does not know the factual relationship or is isolated from the factual relationship has no possibility of blame;3.the party with the burden of proof can submit a specific clue to prove its claim;4.it is expected that the party who does not bear the burden of proof will have the possibility of clarifying the case.In the relevant jurisprudence of Japan,the specific application methods of these four elements are embodied,and the abstract case resolution obligations are embodied in the jurisprudence.The difficulty of application mainly lies the party that bears the burden of proof needs to provide relevant clus,and there should be an expectation possiblity for a party that dose not bear the burden of proof that two elements to grasp.The requirement that a party to be responsible for proposing a clue is essentially to require the parities to be specific to their claims,the clues proposed by the parties can mutually prove their claims and meet the logical requirements of consistency,and they are considered to be in comformity with the obligation to clarify.The expectation of the obligation to clarify of the party responsible for the failure to bear the burden of proof should be understood as: the damage caused by the previous act to the other party or the special relationship with the other party,and the party not burdened with the proof is likely to give the necessary clarify.In the context of the application of the burden of proof not yet stable in China practice,it is more appropriate to take an exceptional obligation to clarify,so as to reduce the impact of the obligation to clarify on the burden of proof.The four elements of the obligation to clarify advocated by Professor Kasuga are relatively clear,and the various elements are embodied in combination with the practice of our country,which facilitates the judgment and application in practice.At present,China's theoretical research and practical experience in solving the case are not perfect.It is suggested that in practice,the application of the obligation to clarify should be extended through the principle of honesty and credit,the principle of equality of the parties,and the parties should be required to explain the facts of the case.In the initial stage,the scope of application of the obligation to clarify is limited to patent infringement,medical infringement,labor disputes,etc,which are difficult to prove due to big disparity in the status of the parties or involve specialized scientific and technical means,then combined with the four elements of the obligation to clarify,it is judged whether the obligation to clarify apply to the case,and the case is gradually classified according to the applicable situation,and the unified standard for the application of the obligation to clarify is gradually established.