| The system of burden of proof is an important litigation system.The main characteristics,object characteristics and behavior characteristics of media tort litigation are different from those of general tort litigation.Due to these differences,the distribution of the burden of proof in media tort litigation is not the same as that in general tort litigation.The burden of proof is based on the general theory of the application of the burden of proof.Its distribution must reflect the balance between freedom of speech and reputation protection.In the extraterritorial investigation of the burden of proof of media’s infringement of reputation,there are three situations: "the British common law model","the American constitutional model" and "the civil law model".Due to different legal traditions,On the distribution system of the burden of proof for the media’s infringement of reputation.There are differences between the Anglo-American law system and the continental law sys tem.The civil law system treats the media’s infringement of reputation as a general tort in the civil law,and has a profound theory as a guide in the system of burden of proof.In the common law system,there is a special defamation law to adjust it.The United Kingdom adheres to the principle of the traditional common law in the defamation system,forming a relatively complete system of burden of proof;the 1964 "New York Times v.Sullivan" made the American media defamation case enter a new stage of constitutional adjustment,and the American judicial community has been trying to build a more reasonable system of burden of proof outside the tort law system.In contrast,although the reputation tort system is regarded as a part of the tort law in civil law as well as in civil law in China,due to the ambiguity of the concept and constituent elements of the media’s infringement of reputation in the substantive law of China,the research on the theory of burden of proof has been ignored in the procedural law for many years,and there are deviations in the understanding of "truth" and the lack of freedom of speech and name in the overall legal system Due to the idea of the balance of reputation protection,the burden of proof of media infringement on reputation right is confused.In recent years,with the deepening of our understanding of the burden of proof and the influence of the advanced systems of various countries,there have been some successful cases in our trial practice.On the basis of summing up the successful experience of our country,it is imperative to learn from the advanced legal systems of other countries and improve the system of burden of proof of media infringement of reputation right.The author believes that the special factors of media infringement should be taken into account when determining the distribution of burden of proof in media infringement on the right of reputation litigation,then from the substantive law and Procedural Law to improve the media infringement of the right to reputation of the burden of proof system. |
