On Rosenbeck's Normative Theory

The theory of burden of proof is the core theory in the field of civil action.At the same time,the distribution system of burden of proof plays a very important role in the whole civil procedure system.The distribution system of burden of proof presents different rules because of different theories.Since professor Rosenberg,a famous German scholar,put forward the normative theory of burden of proof,it has been popular in most civil law countries in the world.So far,it is still the general theory of the distribution of burden of proof in Germany,Japan and Taiwan.Rosenberg's normative theory is based on the norms of civil entities to distribute the burden of proof.There are three advantages: First,it is strongly internally logical.Second,the theory can be widely applicable in practice.Third,high stability is conducive to increasing the applicability of legal security.Recently,with the judicial practice of various countries and the advancement of scholars' theoretical research,it is also believed that the normative theory has three limitations: first,the normative theory pays too much attention to the structural form of the articles of law,and it is difficult to take the substantial justice between the two parties in the case into account.Second,in terms of norms,because of the difficulty of the distribution of burden of proof between the parties and the evidence,as well as the need to protect the vulnerable groups in society,the measures that the burden of proof should be reduced cannot be considered.Third,the major defect of the theory of norms lies in the fact that it depends more on the formal elements of legal norms than on the value determined by the legal norms themselves.There is a distance between value concept and substantial fairness.In short,Rosenberg's normative theory deviates from the value of justice pursued by law itself.From the form of expression,it can be divided into procedural justice deviation and result justice deviation.Because China's civil burden ofproof system is also based on the normative theory,the focus of this paper is to analyze Rosenberg's normative theory from the perspective of distributive justice,and to put forward opinions and suggestions on China's burden of proof distribution system.The article is divided into five parts:The first part is mainly about the object of this paper,Literature Review and the overall framework.The second part is to clarify the relevant concepts of Rosenberg's theory of norms.First of all,the classical connotation of burden of proof,subjective burden of proof and objective burden of proof are combed.Secondly,the practical significance of burden of proof,burden of proof and distribution of burden of proof in Chinese context were presented.The third part is to clarify the origin of the theory of distributive justice and the modern connotation of distributive justice.First,the theory of distributive justice was put forward by Aristotle,and it was inherited and developed by thinkers of all ages,including Hume,Bentham and Rawls.The theory of distributive justice is the main idea of system design in modern society.It includes not only the distribution of social benefits,but also the distribution of social burden.Secondly,the theory of distributive justice falls to the application level of law,which includes the theory of procedural justice and the theory of consequential justice.That is,how to allocate the program and how to allocate the results.From the emergence of law to the application of law,it is the whole process that law itself acts on the whole society as a social system.There are problems of procedural justice and result justice in the stage of law making,which is the stage of distributive justice elaborated by Aristotle.At the same time,there are procedural justice and result justice in the application stage of law,which correspond to the correction justice stage elaborated by Aristotle.In this way,the distribution system of civil burden of proof should also be included.The fourth part mainly expounds the problems existing in the distribution system of burden of proof in China.On the basis of the concept of justice,this paper puts forward some suggestions on the improvement of the current distribution system of burden of proof in China.