Application Of Civil Burden Of Proof Contract

The contract of burden of proof is a new method of distribution of burden of proof,that is,to distribute the burden of proof according to the consent of the parties.As a concept in the context of continental law system,German and Japanese countries started to study it earlier,and their discussions are mostly related to litigation contract and evidence contract.By comparing the concepts and scope of the contract of burden of proof,litigation contract and evidence contract,the broad meaning of the contract of burden of proof is obtained,that is,it does not duplicate the rules of distribution of proof in current laws and regulations,and it is the attribution of adverse litigation consequences agreed by the parties when the truth of a facts to be proved is unclear.It should be part of the litigation contract and included in the collection of evidence contract,which guides the specific research direction of the burden of proof contract.Because of the particularity of the contract of burden of proof in the theory of civil procedure,it has both the attribute of private law and the effect of procedural law.There are successful practices in legislation and practice of burden of proof contract in foreign countries.Combining with the traditional litigation environment,theoretical research results and judicial practice at the present stage,the introduction of the contract of burden of proof in our country conforms to the principle of procedural subjectivity of the parties,can better explain the principles of disposition and debate,and does not violate the principle of free evaluation of evidence by judges.According to the general provisions of the burden of proof in the legislation,the system needs to be improved in the two stages of pre-litigation and in-litigation.Especially in the time,form and judge's clarification of the burden of proof contract,the only way to make the civil burden of proof contract play its role.