Study On The Burden Of Proof In Limitation Of Action

Benefiting from the introduction and construction of the theory of burden of proof,there is not much controversy on whether to adopt the norm theory of burden of proof in civil litigation.But after examining the legislation and judicial practice of the burden of proof in the limitation of action,we find that there are some disagreements among the theory,the legislation and the judicial practice.In terms of legislation,on one hand,although the doctrine of double meaning of burden of proof has been confirmed by legislation,the creation and advocacy of the concept of burden of proof does not effectively relieve the confusion of the connotation and function of subjective and objective burden of proof,nor does it contain the heterogeneity of specific burden of proof.On the other hand,the Supreme People’s Court adopts the opinion that "the obligor bears the burden of proof for the discontinuance of the limitation of action" in the Interpretation of Civil Code,which reflects that there are still differences in the allocation of the burden of proof under the defense system of limitation of action in China.In terms of judicial practice,from the perspective of distribution of the objective burden of proof in respect of the limitation of action,there are mainly two problems.Firstly,the judges shift the objective burden of proof for important facts such as the interruption of limitation of action to the obligor.Secondly,the judges assign the objective burden of proof according to non-standard theories.From the perspective of allocation of the subjective burden of proof in respect of the limitation of actions,the most prominent problem lies in the improper application of the rule for the presumption of facts,which substantially changes the allocation rule for the objective burden of proof in respect of the limitation of actions.The reasons are as follows: firstly,from the perspective of the system of limitation of action,the judicial judgment idea of protecting right holders and the complexity of the defense system of limitation of action bring obstacles to the allocation of the burden of proving the limitation of action.Second,in the perspective of the burden of proof system,with the increasing complexity of judicial practice,the theory of double meaning of burden of proof is not powerful enough,which leads to the confusion of concept and function of subjective and objective burden of proof and the improper application of fact presumption.In this regard,the author claims that: first of all,the objective burden of proof for the facts of the relevant elements of the limitation of action shall be allocated in strict accordance with the regulation.Secondly,on the premise of adhering to the normative theory of burden of proof,we can improve the specific system of burden of proof to ease the ethical crisis brought about by the objective burden of proof in the legal and cultural context of our country,make up for the functional defects of the objective burden of proof and adjust the party’s burden of proof.Finally,from the perspective of the specific burden of proof,the prima facie rule and indirect rule of proof are introduced to construct the dual system of fact presumption.Finally,in the perspective of the specific burden of proof,the rule of prima facie evidence should be introduced and make an organic combination of it with the indirect rule of proof to form a dual system of presumption of fact in China,so as to regulate the powers of the judges in the allocation of the specific burden of proof in the limitation of action and better realize the purpose of the system of limitation of action.