ZhangLiChina

 

   In civil litigation, the parties to their claims including refute the claims of the other side corresponding evidence. This is the pursuit of basic requirements of litigation victory. Because of the burden of proof in litigation activities will be with the party's burden of proof and ascertain the facts of the case continue to shift, at this time, the correct understanding and application of the judge in the case of sharing the burden of proof, the role will be critical to the outcome of the parties. Because of the different understanding of the burden sharing, there will be different results. Therefore, correct understanding and application of the distribution rules of burden of proof, for the exercise of the right, the right to correct the courts exercise judicial power to solve the case fairly, efficiently is of great legal significance and social significance.

 

   According to "the people's court in two cases report" published, some problems on the burden of proof is discussed. The two cases have caused controversy in the theory circle and practice circle, opposite. Some views of the author would like to take this opportunity to talk about the individual, in order to learn and improve the.

 

   One case: a prosecution B, a B to repay 15000 yuan. One evidence is a B a 20000 yuan bill according to a known, B has to pay 5000 yuan, still owe 15000 yuan. B to borrowing fact no objection, but argued that the loan has been repaid, B is proposed to support its claim is the fact that the principal: moujia will own a motorcycle to sell, not sell a car 18000 yuan delivery to B, B thinks it is 18000 yuan to repay their due to a 15000 yuan debt principal and interest. John doe to receive $18000 B no objection, but said it is 18000 yuan a B to repay the debt of another, the case of the 15000 element B does not pay. One of its claim there is no evidence that the.

 

   In this regard, a kind of opinion thinks: the plaintiff by the defendant to sell a car 18000 yuan, the plaintiff claimed the principal and interest repayment 18000 yuan is not the case in the 15000 yuan, but pay between the defendant and the other of a debt, but there is no evidence that the plaintiff should bear the burden of proof, so the consequences of not, should be identified in this case the debt of 15000 yuan has been outstanding, reject the claims of the plaintiff. According to another view, the plaintiff received the car 18000 yuan, the defendant said the 18000 element is the principal and interest repayment of the debt of 15000 yuan, the defendant should bear the burden of proof. Because the plaintiff received $18000 cars this fact does not make the judge that is used for the principal and interest repayment of the debt of 15000 yuan, so the defendant bear the burden of the consequences of not, principal and interest repayment 15000 yuan debt sentence the defendant.

 

   Case two: during the period from 1996 to 1998, Hefei sunlight garment factory and the self-employed do Chen Fang sweater business. Because of the number of transactions, the price often is in a state of uncertainty, the two sides had not signed a written contract specification, but develop trade take rolling mode. By the end of 1998, Chen Fangshang under Hefei sunlight garment factory goods totaled 83437.50 yuan. In 2000 October Chen Fang garment factory issued IOUs to appeal to the court. During the trial, garment factory did not show any evidence to the court; Chen Fang of IOUS from its writing this fact no objection, but stated on the ious content was questioned, think the bill is by the legal representative of the golden ball to deceive the factory in play, play IOUs, nor the number of the previous transaction, the amount of reconciliation, IOUs content is in accordance with the gold ball will copy the draft and into, so Chen Fang thinks the ious instead of its true meaning, and the actual amount differs very far, so request the court ordered garment factory provide document, statement, the true definition repayment amount. Request the court of first instance shall not be accepted for Chen Fang.

 

   The court thinks, garment factory to provide you sufficient proof of the existence of debts between its relationship with Chen Fang, to be admissible on the effectiveness of the IOUs, at the same time that Chen Fang failed to provide the account certificate and other relevant materials to support its claims, then ruling against Chen Fang. Chen Fang refuses to accept, appeal.

 

   During the trial of second instance, the case handling, there are two different opinions. An opinion that, in accordance with the market trading habits judgment and experience of social life, the plaintiff must have the receipt of delivery delivery orders, the plaintiff can provide to the bills do not provide proof, hinder the establishment of the facts. In this case, the burden of proof shift, from the plaintiff to the defendant a debt owed by the body amount undertake provide single responsibility. The plaintiff cannot supply bill of the consequences, the plaintiff on the basis of the ious claimed facts into the authenticity of unknown status, the responsibility should be borne by the plaintiff. It should be remanded. According to another view, the ious in the form of authenticity to be admitted, but has any objection to the contents, the defendant shall not provide any evidence, the evidence includes the statement to prove his allegations, the counter can not be established, the transfer did not change the burden of proof; the defendant plea although there is a possibility of existence in under special circumstances, but there is a possibility, but not necessarily, the logical conclusion; the defense of the accused is not proof, do not accord with the common sense of life. On the contrary, the plaintiff to provide IOUS is sufficient to recognize debts between its relationship with the defendant, the plaintiff hereby advocated the establishment of the facts of the case, there is no fact is unclear. Therefore, the defendant bear the consequences of losing, dismiss the appeal decision.

 

    The above two cases, involving the proof is complete, the definition of the statements of the parties and the transfer of the burden of proof problem of determining relations; it contains the free heart certificate in the burden of proof on which the judge.

 

   Define the problem, the burden of proof finish

 

   In civil litigation, the burden of proof is and if the facts that closely related. A fact that the parties, is the premise that he may bear the burden of proof for the. The parties to win the demolition, must be in accordance with the law or court already according to certain standards of burden of proof in cases of different elements of allocation of burden of proof, or because of the burden of proof can not or not fully, cause the fact to be proved is still unclear and bear losing the results. Therefore, the parties shall produce evidence to prove the facts to be proved the proof is completed or not, thus far from the risk of losing is particularly important. However, the parties shall produce evidence to prove the extent to which complete? The judge and how to judge the parties burden, which will complete the transfer of burden of proof to another party? It is difficult to grasp, the trial practice differences are also larger issues.

 

   For the parties, its deal with evidence of facts, only in accordance with the law or the judge of fact set distribution according to rules set to provide evidence that you can; but for the judges, the confirmation of one of the facts to be proved, need to be convinced, and this needs much evidence, cross examination and the judge evidence - series of proceedings before the formation of. The proof is completed or not judgment, apart from the object of proof and standard of proof investigation, discretion and judge is closely related to the. Both parties or judge, content and standard of proof on the objective judgment should be consistent, in the subjective is mainly highlights the free heart certificate.

 

   1, the object of proof review

 

   In each case the specific civil cases, the fact to be proved is that the object is the basic unit of the case facts. The facts to be proved by the allegations made against different. Some laws have set, some not. In one type of case law to permit the necessary facts are the set of circumstances, whether the parties or judge, operate up are more clear. Revocation of the right questions such as "contract law" provisions of article seventy-fourth of the creditors ("obligor renounces its due creditor's right or transfers gratis its property, and cause damages to the creditor, the creditor may request the people's court to revoke the obligor's act......" ), here, you can clearly see that, the creditor to exercise the right to rescind the debtor behavior, only need to prove the following essential fact proof: the debtor a disposition of property, such as renounces its due creditor's right or transfers of property without compensation; the disposition of the property of the obligor's act has taken legal effect; the debtor disposal of property behavior already or will cause damage to the creditor.

 

   Several provisions on evidence in civil proceedings in the Supreme Court recently promulgated the "" (hereinafter referred to as the rules of evidence), the distribution rules of burden of proof in contract cases made specific provisions, in practice this case indeed played a great guide and help. However, we should also see clearly, the "rules of evidence" in the provisions of the case distribution rules of burden of proof is not complete, its only the contract types of cases stipulated in civil litigation, and apparently more than contract cases. At the same time, "rules of evidence" for the contract cases the distribution rules of burden of proof, just also identified a large frame, not to produce contract facts for further classification, resulting in the need to bear the burden of proof on the contract rights of all elements of the fact, or only the burden of proof in special conditions? Such as the establishment of the facts of the sales contracts, the parties are required by the provisions of contract law article twelfth and 131st provisions that the names of the parties, subject matter, quantity, quality, price, time of performance, delivery mode, the liability for breach of contract, packing, inspection standards of proof, or only on the main terms such as the burden of proof which can be party name, object, quantity, price? The author thinks, no clear provisions in the current legal situation, should be the legal essentials classification as handling this kind of case assignment of liability rule is more reasonable; for a small number of cases by this rule can't get a fair outcome, according to law, judge and reverse the burden of proof. In judicial practice, because the law does not specify the object of proof of the existence of a large number of cases, the main distribution rules are determined by the judges discretion of judges, because of different understanding, improper aggravate or relieve the burden of proof of the parties is bound to damage phenomenon, the applicable law of unity. The Supreme Court should as far as possible to reduce the provisions, not unified practice to the utmost extent.

 

   2, the proof standard of review and grasp

 

   The burden of proof in the fact that the legal requirements of the controversial once determined by one party burden, the problem is the evidence that the extent to which the fact is unclear, the state was broken? This is the standard of proof. The standard of proof, also known as the proving requirement, refers to the judge standards of proof that must achieve in the proceedings. Standard of proof is determined, once the probative force of evidence to reach a certain standard, the evidence of the fact that it has been proved, the judge should determine the facts. For the parties, only to understand the standard of proof is not because of the standard of proof in the obvious underestimate evidence insufficient to litigate, thereby incurring the mistake won and the actual encounter the losing end; at the same time, do not regard as the standard of proof is overestimated in the evidence has been reluctant to prosecute when. For the judge, only a clear standard of proof, can correctly grasp the facts of the case requires a degree of evidence, in order to to measure the fact to be proved is proved or remains unclear state. Therefore, reasonable, scientifically determine the standard of proof is an important problem in the proof of litigation.

 

    The standard of proof in the Civil Procedure Law of China does not explicitly civil litigation. For a long time, affected by the "fact" that requires, in practice to prove a fact evidence cannot be conclusive evidence, especially in the conflict between the case of how to judge, the judge often confused. The Supreme People's court "rules of evidence" about "seventy-third parties on the same facts respectively provide evidence to the contrary, but not sufficient basis for denying the enemy the evidence, the people's court shall, according to the circumstances of the case, judge probative force one party provides the weight of evidence is significantly larger than the other party to provide evidence, and the larger probative force the evidence confirmation. Because of the strength of the evidence can not judge the facts of the dispute led to difficult to identify, the provisions of the people's court shall, on the basis of the allocation of the burden of proof rules to make the judgment ", solves the problem that has long plagued the judge. This is also established the "standard of proof of civil action of the high degree of probability". The standard of proof is applicable to suit the fact to be proved is still unclear. The basic rule is: where to be proved the probability is high, that the occurrence of the parties do not bear the burden of proof, the relative person should not occur in the burden of proof. In practice, the application of the standard, ask the judge in the judicial one asserting the fact of case according to the trial activities formed a considerable degree of inner conviction in the investigation of evidence, judge, at least can form of understanding has a great possibility, can feel at ease to knot theory. Here, how to grasp the "than" this criterion? Obviously, the judgment of the free heart certificate judge's heart, is unable with the language or specific data accurate expression. It is only by the judge according to the rule of experience, combined with the business skills to make a conclusion. But the judge in the proof process, must eliminate outside interference, because of external pressure and temptation tend to make the judge can not independent trial or lose neutrality, thus affecting the proof result fairness and rationality. But in any case, the judge proof results must be sensible, logical reasoning, with the majority of its evaluation requires. But this is not without the slightest doubt, but should be restricted within a reasonable range of these points of certain.

 

    Of course, to define the liability of putting to the proof is complete, in the presence of a statutory exemption of burden of proof or in accordance with the law shall be the transfer of burden of proof of the parties, such as the admission in lawsuit, the other to hinder proof of the fact, even if the parties to the proposition to be proved no evidence or proof enough to prove this fact was established, should also be regarded as the party has been completed the proof, the burden of proof borne by the other party.

Here, attention is, in fact a party to legal requirements in accordance with the law or the judge set in advance of the complete proof, not of course caused by the burden of proof to prove that the facts to be proved confirmed the consequences. May hold some negative evidence in evidence holders, and the evidence of the fact is the other Party advocated the case, if it is proved that the other party or the court according to the relevant evidence or by the study found evidence law Master in their hands, the party in the court request without justified reasons, the court the constructive content a party advocating evidence does not favor the evidence holder. This is a proof of the consequences, objectively constituted the inversion of the burden of proof, namely non holders no longer to bear the burden of proof of the facts, and by the evidence holds evidence, if not proof bear the adverse consequences.

 

   In the second case, the plaintiff and defendant Chen Fang garment factory for the debts of debtor creditor relationship, the plaintiff provides IOUs, has completed the burden of proof of the facts to be proved. But the defense of the accused to change. Concrete analysis is as follows: firstly, the defendant to the plaintiff owed 8 yuan of burden of proof, the burden of proof is on the defendant to the plaintiff, temporarily out of the risk of losing; secondly, the accused admitted by the writing IOUs, but specified amount of IOUS questioned, and apply to the court to order the applicant to provide checks on the bill. The statement of the accused, is in the form of the real nature of IOUs to admit, challenged the ious in the content of the authenticity. From the just for the plaintiff to provide evidence of IOU itself questioned the content point of view, the defense of the accused is proof against (evidence; the defendant plea) retort, the amount owed is more than 8 yuan of disputes, but also necessary in the impact, the heart that at this point, the judge in the case, justice the principle of good faith, consideration should be given to verify the controversial ious; thirdly, judge a large enterprises according to market trading habits, life experience and the plaintiff, the plaintiff in each transaction should have to account vouchers, which is essential for reconciliation document verification issue IOUs content. Accordingly, the judge should be in accordance with the terms agreed to the application, shall be ordered to provide the plaintiff reconciliation document. Finally, if the plaintiff does not provide reconciliation document without justifiable reasons, in accordance with the provisions of article seventy-fifth "rules of evidence", the act constitutes a hamper the evidence, it shall be presumed that the reconciliation document content was adverse to the plaintiff, the amount of arrears reconciliation document reflects lower than the 8 yuan. The presumption of burden of proof in fact produce effect, the amount of arrears is how many does not bear the burden of proof. Because the presumption has reconciliation document against the plaintiff, the plaintiff claims based on facts prove force ious weakened, that is to say, the ious as in the proof and the facts to be proved (money owed more than 8 yuan) and reflect the value and the strong small state or degree, can not form a certain high degree in the heart. Not up to the standard of proof, high degree of probability. The result is according to the evidence to support the claim of the plaintiff ious force cannot judge, whether the defendant owed more than 8 yuan is still unclear state. In accordance with the "rules of evidence" provided for in the second paragraph seventy-third, shall be borne by the plaintiff to bear the adverse consequences.

 

   Determine the conversion effect two, statements of the parties in the burden of proof

 

   The statements of the parties to litigation cases to the court made the perception, understanding and memory of the relevant factual statements and explanations. The party statement is one of the forms of evidence. The parties to the own statements, in addition to the other party approval, has no effect from the burden of proof. The statements of the parties have accepted statements and deny the statement, admitted the statement that admission and the admission in lawsuit and out of court admission points. The statements of the parties of different nature, and the other on the burden of proof has the very big relations.

 

   (a)Parties' commitment and the burden of proof

 

   1, the admission to bear the burden of proof and litigation

 

   The parties in the proceedings, admitted to the court or judge each other claims not such factual behaviors, called for action on admission. To grasp from the following five aspects:

 

   The subject of admission. The subject of admission must be parties to civil litigation or its authorized agent; the former includes himself and statutory agent. Admission legal agent has the same effect with my confession. In my presence, the recognition of the legal agent or representative is not to deny that, as the recognition of the parties; in the absence of the occasion, if the agent just admit several other ideas, facts, and argue for the rest of the facts, or the recognition of each other the fact that the new facts to refute the other claims, which should be considered for recognition of each agent allegations will lead to recognition of each other's claim, the agent and the parties' that does not produce the effect, unless the agent has special authorization.

 

   The time of admission and object. Admission must occur in the process of litigation, and must be made before a judge or court is effective; has adverse recognition or statements, whether in the other party claims that the fact is made after or before making, may constitute the admission; admission object must be in the other party statement of the facts of the case, the parties to such legal applicable evaluation consistent presentation, no admission problem.

 

   The admission of content. Must be with the other party's statement of fact complete consistent, that is to say, the admission by pointing to the fact and the other facts not contradictory, otherwise does not constitute an admission. Statements of the parties Is it right? Admission, should be observed from the whole, cannot interpret out of context. Standard has three, one is not extended to all parts of self; the two is party to the other party of facts that once existed, but said it is because other facts or destroy, this is also known as "admit" additional restrictions, will be discussed in the next section; three is uncertain or inconsistent statements, the parties for the other party claimed facts before admission to deny, or even acknowledge the fact but the additional restriction free variable, contradictory, the court may, discretion and identified it as a confession.

 

   The admission way. There are express and implied admission; that the parties to the oral or written form definite meaning, to express the admission. The parties, silence too simple to confess, as implied admission, the party neither acknowledges nor deny, should the judges explain and inquiries, it is still not clear that the positive or negative, as to admit this fact, this is also called the fiction admission.

 

   Effect of the admission. The role of the parties themselves occur from the other party the burden of proof, the consequence is the burden of proof is a statement of fact to consider a party; therefore, self binding on the parties, the court (including the superior court) also has the binding force, the court should be based on facts as the judgment basis of admission, without review, not as the opposite of that, do not have to investigate according to the authority, even in the face of the parties present evidence for the presence of questions and difficulties encountered, and at the same time choice of admission cases, courts are not able to investigate according to the authority, the rules of evidence which is inevitable result of adversary system. In addition, admission and whether the common litigants, the author thinks, Republic of litigation party to the litigation have common rights and obligations, including action one including recognition of other facts, the other common lawsuit people admit to others, to enter into force on the object of litigation is not common; rights and obligations, one on the other side of the recognition of the fact that the other joint action has no effect. In addition, the parties themselves before a lawsuit is brought, or after the court presided over the mediation agreement, and to make reconciliation or to compromise or concession, admitted the facts of the case involved, does not constitute an admission, also cannot be used as evidence for litigation confession.

 

   2, the self assumed and the burden of proof

 

   The parties to a case that may occur in the process of litigation, if the defendant to the plaintiff in the proceedings before the letter had admitted to the loan, or to third people admitted to the borrowed money. The admission procedure, no legal effect from the other side of the burden of proof. The parties have to provide evidence that the other party in litigation to recognize the fact that white should still be held. The parties may be each other out of court admission to use as evidence, the burden of proof to prove the lawsuit that claimed facts.

 

   Notable is, whether the environmental lawsuit or out of court admission, all allow the parties to withdraw or overthrow the admission. The former shall, with the consent of the other party in litigation, or there is sufficient evidence to prove that the acts of recognition is under stress or a major misunderstanding situation, and shall provide evidence of its admission of facts is not true, do not accord with the facts of cases; the latter to overthrow the admission should be contrary evidence enough to overthrow the probative force of admission, here "evidence to the admission requirements" is not produced evidence to the contrary to fact ambiguous authenticity Nanbian, admission to. This requires the successful and refute the proof to prove that force is consistent. Admission is withdrawn or revoked, the parties still bears the burden of proof for its claim, the other party has confessed the fact.  

 

   (two) recognition of the Decision Commitment and the burden of proof for the statements of the parties attach the denial, additional restrictions

 

   All the statements of the parties in the complex form, admit additional reason deny and additional restrictions are very similar in shape, and others, are easily confused in practice, a great impact on the correct application of sharing the burden of proof of the parties, therefore it is necessary to distinguish.

 

   An additional reason to deny, in the form of: one party to the other party's statement said the Department, also proposed new facts, deny the statement. The result is not a confession, not from the other party's burden of proof. For example, the Party advocated had to lease its all ships to B, we request to return; Party B acknowledges receiving party a ship, but this is the place to buy from Party A. Here, B denied party a lease contract to buyer seller relationship, while Party B acknowledges has received a ship, but the statement of Party A has not been fully recognized, the Party B's statement comprehensive, complete, and its essence is a kind of denial. In this case, Party A shall still have to bear the burden of proof fact ship leasing contract with the relationship between Party B. That additional restrictions, in the form of the party to the other party's statement of fact to be recognized, but also put forward to defend the party claims the new facts. Here, new facts can be associated with the admission of facts, there will be no association. For example, the plaintiff defendant default default payment of compensation 10000 yuan; the defendant admits default, also have no objection to cope with the compensation of 10000 yuan, the limitation of action but the plaintiff claims has exceeded the period stipulated, agree to indemnify. On the one hand, the defendant admitted that the plaintiff claims as litigation request according to the facts, on the other hand, the limitation of action has been outdated facts to refute the plaintiff's claim. As can be seen, the defendant admitted that constitute the proceedings on admission, the plaintiff can relieve the burden of proof limitation of action; and the defendant has been the fact, for the fact that the new genus rebuttal of the plaintiff, not related to the new facts and the facts of admission, the defendant shall bear the burden of proof of the new facts. And as the plaintiff, defendant by the delivery of rental housing rental agreement, signed a lease agreement was admitted by the defendant, but also put forward the son agreed to be on the university after the son will be rental housing, not admitted to the University, the agreement does not take effect, do not agree with others. In this case, the defendant has the rental agreement in admitted at the same time, the rental agreement with the stop condition of the fact, the defendant about acknowledged the rental agreement statement apparently identical and the facts as stated by the plaintiff, the defendant confession of the same parts; a rental agreement with a stop condition that, although there are associated with its admission of facts, but should still be considered the defendant proposed for rebuts new facts. Thus the need to prove.

 

   Through the above analysis, we return to the case, the solution is not complicated. First, the fact that B admitted borrowing, the plaintiff issued a about a 20000 yuan bill, has to repay 5000 yuan, still owe 15000 yuan of factual claims to be fully recognized, constitute the admission, the consequences are from the burden of proof the plaintiff to lending relationship established fact; second, the defendant of the pen the loan has been repaid the borrowing relationship to eliminate the fact, specifically: "B commissioned a will own a motorcycle to sell, not sell a car 18000 yuan delivery to B, B that the 18000 yuan is the principal and interest to repay a $15000 debt." B the facts of new facts in litigation, the attack defense, the fact is that debt B proposed elimination of existing of the credit, the burden of B on the fact; third, the plaintiffs acknowledged that the $18000 received the defendant, but said it is the defendant to pay 18000 yuan a debt of 15000 yuan, the defendant in the case did not pay. The statement of the plaintiff, the defendant is the borrowing relationship to eliminate new facts in the "had been commissioned to sell a B a B a motorcycle, car 18000 yuan has not delivered to B" facts to be recognized, but also raises new facts that "18000 yuan is a B for repayment B on the other a debt" to deny a B about borrowing relationship annihilate facts "in the 18000 yuan is a B to repay the principal and interest on a $15000" facts. The statement said, its essence is "additional reason deny", close does not constitute a lawsuit on admission. The result is not exempt from the burden of proof on borrowing relationship to eliminate a B fact. Understanding on the other hand, due to a denial, resulting in 18000 yuan B that is a 15000 yuan to repay principal and interest repayment, or a another debt cannot be determined, leading to a B advocated borrowing relationship of the fact is unclear, the burden of proof responsibility the fact was still in Otsuichi square, the can't prove, should the court to repay the principal and interest 15000 yuan a. As for the motorcycle to sell 18000 yuan, B can be sued for the return.

 

 

(the author of Gansu Jin law firm lawyers)