Environmental tort case distribution principle of burden of proof in administrative litigation

Environmental tort case distribution principle of burden of proof

　　 A general principle, the allocation of the burden of proof
　　(a) why the allocation of the burden of proof
The burden of proof [1], refers to the legal requirements of litigation parties for their claims in fact, present evidence to prove the responsibility. The allocation of the burden of proof is actually refers to this proves how responsibility between the parties in question. In general, bear the heavy burden of proof of the parties in the litigation will be placed in a more disadvantageous position, therefore, the allocation of the burden of proof and the protection of the parties interests directly related to.
Theoretically speaking, as the litigation filed -- the plaintiff shall bear the burden of proof, the general completely. Because the plaintiff in the lawsuit claims there is right or legal relationship of the parties. He should not only be proved right arises from the fact, and should be further prove that there is no fact impede the rights and change, destroy the facts right, as demonstrated in all this only after the fact, the court to make sure that the plaintiff's right or legal relationship did exist. So, why between the allocation of burden of proof to both sides in the responsibility Mainly because of the burden of proof the plaintiff all facts exist some insurmountable disadvantages.
Draw further apart 1 and the state set up the purpose of civil litigation system. The establishment of the civil litigation system is for the purpose of the court and the referee on the disputes of civil rights and obligations, on one hand, protecting the legal civil rights, on the other hand, civil sanctions violations. Civil litigation system for engine "don't tell", so to achieve the purpose of the civil litigation system depends on the rights and interests are infringed parties file a lawsuit according to law. You need to create the necessary conditions for the party to seek judicial relief. Under normal circumstances, the plaintiff is because of their civil rights are infringed or dispute and to appeal to the court to seek legal protection, success is a direct target of the pursuit of. However, there is always the risk of litigation, the burden of proof is a risk in litigation. If the burden of proof in all the facts are in the body, so that the plaintiff had to bear all the risk in the proceedings, the slim hope huge risk will make the plaintiff. The design of this system is tantamount to a given litigation the plaintiff's rights, on the other hand, as he won the barriers, will make the plaintiff and step back in front of many risks, obstacles.
2 and "litigant civil rights equality" principle in conflict. Compared with no burden of proof of one of the parties, the burden of proof of the parties is obviously in a disadvantageous position in the litigation. In the event of a dispute over the facts of the case as the basis of judgment when one party bears the burden of proof to escape the misfortune of losing, you must provide this fact evidence, not the burden of proof of the party to present evidence to each other before, only need to deny can have full assurance of success, do not need to provide any proof. When someone puts forward some but not enough evidence, not the burden of proof of the party still does not provide any counterevidence win. If the plaintiff to prove all the facts, and as long as one fact without proof, will bear the adverse outcome of the litigation, the plaintiff's burden of proof is a burden too heavy, the defendant is hardly onus situation, the plaintiff was at a disadvantage in the litigation. The original, the defendant in the litigation status of the serious inequality, will hinder the equal exercise of their litigation rights.
3 and the lawsuit does not meet the requirements for saving. The justice is the first goal of the civil litigation system, but not the only goal. The ideal situation requires not only the referee is justice, and justice is obtained by spending less time and money, which is by the cost as low as possible to obtain the. This is the "action to save the (economic) principle" of civil action request. In the case of litigation, the facts to be proved more cases, litigation process becomes more complex, more slowly, the cost of manpower, material and financial resources, the more. If the plaintiff to fact one one proof, litigation will become very slow, into the party and court will increase sharply, & education, network & it against litigation conservation requirements. In order to eliminate these drawbacks, it must be the burden of proof for reasonable allocation between the parties, that is to say the plaintiff did not have to bear the burden of all the facts, only a part of the fact that the burden of proof, the burden of proof on the other part of the fact by the defendant. In order to save costs, improve the efficiency of lawsuit.
The distribution of burden of proof in the civil evidence law is a difficult problem, numerous doctrines. From the two principles of Rome Law: "the plaintiff have the burden of duty", "claims that people have the burden of proof, negative people without the burden of proof"; to be evidence of the fact that the classification, legal elements classification until the danger field, namely, ownership, interest measure damage said said, procedural law said. "Are coexisting in the area shows that the burden of proof is extremely complex, on the other hand also shows that attempts to put things right once and for all one or two principles to solve all the issues of burden of evidence to not meant to succeed." (1) the reason, many factors affect the allocation of the burden of proof is, for example, distance of evidence, evidence collection, the substantive law on the special policy considerations, probability standard, obstruction of evidence, the facts to be proved itself etc.. At the same time, the distribution of the burden of proof theory across the substantive law and procedural law in two major areas, from a field are unable to grasp the true meaning of it.
Because of the general principles of burden of proof is difficult to form the theory, legislation and practice has used the different theory. From the practice of civil law countries, the theory of legal elements of the specification by lawmakers in favor, but countries are comprehensive entity value and procedure value considerations, to regulate the abuse that too formal to be modified. In China, most scholars also tends to agree with the specification of this modified said.
(two) how to allocate the burden of proof
In order to make the civil litigation can orderly and efficiently, need to determine the allocation of the burden of proof of principle, according to certain standards in advance between the two parties of the allocation of the burden of proof. China's civil procedure law sixty-fourth stipulation: "the parties of their claims, have the responsibility to provide evidence", this provision appears to have been the "who advocates, who proof" settlement of the burden of proof in civil litigation in China share problems. In fact, because according to this stipulation, the burden of proof is based on the parties in the litigation of facts and determine the first proposition, fact, and bear the burden of proving the fact that. This actually reverses the relationship between the two. If only from the surface observation, the actual operation is indeed the litigation parties in the litigation claim different facts, then the facts to prove. But the actual situation is just the opposite, that is the burden of proof decides responsibility rather than claims responsibility for determining the burden of proof. That is to say, only when the burden of proof according to certain standards have been allocated to both parties, to determine the need to advocate what the facts in litigation. Therefore, the civil procedure law does not solve the allocation of onus probandi.
Said classified according to legal requirements, the allocation of the burden of proof in civil litigation in China is the standard:
1 whoever claims exist right or legal relationship of the parties, only to that special requirements to have the right or legal relationship (such as contract, a will, there is a tort fact etc.) bear the burden of proof; hinder right or legal relationship facts (such as fraud, stress and damage the interests of the state and so on) as the general facts of essentials, by denying the other party has the burden of proof right or legal relationship.
2 Whoever claims to change or destroy occurred right or legal relationship of the parties, only in special conditions change or abolish (supplementary agreements, such as the change of contract modification will, debt relief) bear the burden of proof; the fact of general conditions change or eliminate prejudice to the right or legal relationship, by denying the burden of proof the other party to change or destroy the responsibility. In 2001 November promulgated the "Supreme People's Court on evidence in civil proceedings Several Provisions" (hereinafter referred to as the "Regulations" ) established the distribution of burden of proof.