Evidence in civil procedure and method (two)

The burden of proof and its distribution -- General rules

Teng Wei

Three, the burden of proof in civil litigation and its significance to the party

According to the provisions of China's "civil law", the parties have the responsibility to provide evidence in support of their claims, this responsibility is the burden of proof. The burden of proof is often called the burden of proof, it is the content of the Civil Procedure Law of evidence in the most talked about topic. On the burden of proof, the Anglo American law generally includes a "compelling responsibility" and "responsibility to provide evidence". The former refers to the litigation of burden of proof of the parties to the court the fact people all the while bear; the latter refers to those who put forward a request, complaint, for the people, shall bear the burden of proof in litigation, the formal process of the parties have the obligation to take all, and the case evidence relevant to his master the proposed, in the pre-trial stage, otherwise, the court considers the parties have abandoned the use of this right, present the evidence and not judicial review in the future. In civil procedure law, divided into the burden of proof on the subjective and objective burden of proof on the former said, that it is the responsibility, the burden of unfavorable outcome of the proceedings, is by failing to perform provide evidence for days. The latter believe is still unclear in the facts of the dispute, requires parties adverse action results, although sometimes the positive evidence, but for various reasons the burden of proof is not sufficient, still have to bear the responsibility, sometimes the parties although there is no proof, but due to the fact that as everyone knows or easy to verify, do not assume responsibility.

In our country, the burden of proof often have the following meaning: one is the parties shall provide proof of his allegation; two is provided by the parties evidence, should be able to demonstrate that its claims with authenticity; three party for its claims cannot provide evidence, or to provide evidence can not prove its claim is true when, may withstand the unfavorable judgment. Therefore, can not think of the parties provide evidence, completes the proof of legal, completely get rid of the risk. To solve the disputes between parties, it is the duty of a judge. The judge to smooth and fair handling of the case, we must first ascertain the facts, and the facts of the case from various proof results. Therefore, if caused by the fact that cannot be ascertained or cannot be determined because of evidence, there must be a party to bear on the adverse consequences, which relates to the question of burden of proof in the most simple sense. The judgment of the court only two results, either is the plaintiff, the defendant shall either. Facing the adverse consequences of losing, who shall ascertain the facts bear the burden of proof? As everyone knows, our civil judicial reform has been carried out for many years, this reform, making an objective evidence of the system reform in our country has become the central content. The people's court testimony, the parties, the judge authentication, carried out a series of reform measures, the most attract sb.'s attention is "to strengthen the party's burden of proof". Because, from the trial of science and logic, gradual improvement and procedure of civil litigation structure, must rely on the civil evidence system, and focus on the evidence system of civil litigation is the burden of proof.

The burden of proof includes behavior sense of burden of proof and the burden of proof on the meaning of two layers of meaning: on the one hand, the parties have the responsibility to provide evidence for their claims, on the other hand, when the facts to be proved by unknown, bear the burden of proof in accordance with the law of the party to bear the adverse consequences of responsibility. Connotation to define the burden of proof from the actions and results of double meanings, for improving the efficiency of lawsuit, has very important significance of coordinated trial mode reform.

1, the burden of proof behavior sense

The burden of proof the traditional behavioral sense, is to understand from the responsibility to provide evidence of the angle and grasp, provisions of the code of civil law in China is also made in this sense. The responsibility to provide evidence as proof liability in the sense of action, have their own characteristics: one is the responsibility of the parties claim responsibility in traction by external form, so it is not a burden of proof terms appear in the process of litigation. That is to say, as long as the parties claim, will have the responsibility to provide evidence. The parties should actively provide evidence in civil proceedings, bear the burden of proof, otherwise, he will bear the adverse consequences due to improper or advocate laches idea. For the parties, their since have advocated, should be through their own positive actions proposed and advocated the evidence of conformity, as much as possible so that the judge accepted his evidence, to support their claim. Two is the proof liability in the sense of action, with the change of one party burden of degree and can be repeated many times, therefore, the burden of proof behavior sense of the burden of proof is a kind of dynamic. Three is the proof liability in the sense of action by a party to provide evidence to prove force and displacement between the parties, so it is possible to switch back and forth between parties responsibility. For example, in arrears dispute case, the plaintiff to prove that the defendant owed provides an IOU defendant wrote to the court, which is also used as the burden of proof, the plaintiff shall bear the burden of proof, the plaintiff has fulfilled his. The judge also according to this bill, that the defendant owed fact preliminary. The defendant to refute the claims of the plaintiff, it must provide evidence for the plaintiff to write the receipt to refute the claims of the plaintiff, at this time, the judge is likely to shake that already formed. So, in order to prove the existence of the arrears, but also bear the burden of proof to refute the receipt, the burden of proof and transferred to the prosecution. So to say, the burden of proof behavior sense, always around to judge whether the facts of the case and make sure the extent to which moves back and forth between parties. For the proof liability in the sense of action, its external form to provide two aspects of evidence collection, evidence and usually in the investigation, the external behavior, but also the capacity to action in the concrete manifestation of that responsibility. Generally speaking, the law is allow parties to help to expand their capacity for action, in order to reduce their burden of proof. Such as lawyers can assist the investigation, some evidence the judge can help in the case of application etc.. That is to say, the main responsibility lies not only in the party, and the burden of proof in the sense of responsibility only by the parties themselves different.

2, the burden of proof on the significance of

Since the burden of proof in civil litigation evidence system of our country introduced the significance of the results, our burden of proof theory will have a modern flavor, and full of rational. It refers to the existence of a party advocating the fact or not can not be determined, should provide a risk and liability which party should bear the adverse consequences. The results of the burden of proof on the significance of based on "judges should not refuse". Because, if allowed to fact can not find out the case, the judge may refuse referee, would violate the establishment of our judicial system from the establishment of the original intention, purpose of civil procedural system. So as long as the case belongs to the scope of the people's court, the judge must make a decision on it. Under this principle, if the facts of the case did not find out the facts of the case, or in a state of apocryphal, the judge cannot affirm the fact, also cannot apply the substantive law ruling, the judge should be how to do? This requires the sense of burden of proof function. Results the burden of the sense of not towed parties claim responsibility, who should bear the burden of proof by the substantive law set in advance, it is not in the transfer between. Someone will this responsibility as risk allocation of responsibilities, it in every procedure before it already exists. The sense of the burden of proof for the facts unclear as the premise, if both parties can not provide evidence to ascertain the facts, from the sense of burden of proof burden shall bear the adverse consequences, that is to say, if you don't have to be evidence of the fact that the burden of proof is unclear, the sense of value they are not reflected. The so-called "unclear", is actually in the proceedings at the end, all may provide evidence appeared in court, all legal evidence measures have been exhausted, but the judge cannot be convinced, a state the facts of the case still cannot be ascertained. Only in the presence of the facts of the case is unclear, the meaning of the burden of proof will take effect, the court will be based on the distribution rules of burden of proof, the burden of proof responsibility to one of the parties bear the consequences of the losing.

The relationship between the burden of proof and the results of the 3 act, sense of burden of proof on the significance of the

Very importantly, the burden of proof we call the behavior sense of burden of proof and the significance of the results, and not tied the two explanation, but the burden of proof in itself contains this two sense or two aspects. Responsibility and accountability are part of the burden of proof. Although there are differences between the two, sometimes behavior responsibility can also from the result liability and independent existence, but they are different levels from different angles, to reflect on the burden of proof. To equate both are wrong, separate both is wrong. Behavior sense of burden of proof and the burden of proof on the significance of the external process in the proceedings have been presented, the first is the responsibility of default, is the actual behavior of responsibility, behavior responsibility, the responsibility is possible, may not appear. Of course, we also want to understand clearly, there are some differences between the two. For example, the burden of proof behavior significance is the procedural requirements, do not provide evidence, lawsuit can not be. As a result of the burden of proof the significance of substantive law requirements, that is a party to provide evidence consistent with the substantive law requirements, the judge will meet their litigation request, but does not meet the requirements of the substantive law, judge refused to apply the substantive law to meet the requirements, but rejected the claim. For instance, the burden of proof behavior meaning into actual behavior to provide evidence to the court, and the burden of proof sense is the risk losing commitment, is a specific, one is abstract. Therefore, the burden of proof of the content is very rich. As a party, to contain the proof responsibility, not only the parties to collect and collect evidence materials won't be ignored in proceedings before, litigation, but also has the psychological preparation for litigation risk. More importantly, the parties can grasp the burden of their burden in the litigation process, i.e. when a negative proof liability in the sense of action, the burden of proof the circumstances under which a sense of.

At present, in the judicial practice, there are still many parties cannot take seriously the responsibility of proof, still rely on the court for the evidence. However, civil rights disputes as private rights disputes between citizens or legal persons, the general should not use the state power to a party the evidence, especially in judicial justice, judicial neutrality of judges of the court investigation evidence collection, range is extremely limited. When the lawful civil rights and interests have been infringed and the lawsuit, to occupy the initiative or the advantage position in the litigation, he would actively to collect the favorable evidence, do not be negligent or dependent, allow someone to continue.

4, the burden of proof of the parties

First of all, as already mentioned, the parties concerned shall actively collect evidence in the event of disputes, the preservation of evidence. So, the parties through the understanding of the rules of burden of proof, can understand oneself should the burden of proof burden in the dispute, which will try various devices to use the most easy way of obtaining evidence to prove the future, such as loan for the borrower to write IOU, shopping to sellers claim invoices, to the hospital pay attention to obtain and maintain all medical records, buyers signed the purchase agreement, the easy loss of evidence, to think of how to take measures to preserve the even request the notarization. To make a long story short, distribution rules of burden of proof will guide the parties in the event of a dispute, to provide evidence and materials more fully, so that their legitimate rights and interests will be protected effectively.

Secondly, rules of burden of proof of the parties can help to predict the possibility of their successful litigation costs, estimation, to correctly choose whether litigation. When the dispute can, in general the parties will consider whether the proceedings, in favor of the chances of such problems. If the parties understand the distribution rules of burden of proof, it can accurately judge. You know, litigation costs, the fees for accepting the case, the announcement fee, appraisal fees, assessment fees, legal fees and future application execution fee etc., all these should be taken into consideration. If successful, many of the costs will be back, once lost, it may The loss outweighs the gain. Judgment and winning and losing, to a large extent depend on the distribution rules of burden of proof, see their own data are complete and fully, can occupy a dominant position in the trial process in the future. If the hand is not sufficient evidence materials and hardly any evidence, the burden of proof of the parties, the prospect is not optimistic. In this case, the parties may do some evidence, especially for entering litigation is difficult to obtain evidence, shall, in proceedings before it should be. Also, need the other party to obtain evidence, should also be in proceedings before the collection of hand, and then decide whether or not to bring a lawsuit. Because, want to get into the proceedings of the evidence is often more difficult. If the prediction of their win big, may even be lost, as the initiative for a settlement with the other party, in order to reduce the cost of litigation. What need reminds is, whether the plaintiff or the defendant, for obvious case in dispute, expand do not vexatious litigation caused by the loss of their own.

Third, after entering the procedure, distribution rules of burden of proof can be targeted to guide the parties to provide evidence, including the order of what evidence, evidence presented. The distribution rules of Party and his litigation representative only know the burden of proof, to seize the focus of controversy, purposeful action.

Fourth, the distribution of the burden of proof rules can have buffer effect on the consequences of losing, not for the adverse judgment was suddenly. Because of the facts of the case as evidence in litigation change constantly, so the risk of losing, the parties will always exist. Various conditions can sometimes influence the outcome of the case: it with full confidence in favor of a party, may be because the preponderance of evidence each other but become passive or even lost; thought he might be a losing party, may also be because of the distribution of burden of proof to each other and they cannot provide evidence in favor of. Whatever the result, is the distribution rules of burden of proof result. The losing party if you know the rules of burden of proof, will respect the judge, not feel suddenly, inexplicably, grievances, or even suspect that the judicial corruption and everywhere petition to protest.

The general distribution rules of burden of proof in civil litigation, four

To understand the meaning of burden of proof, can the distribution of burden of proof rules grasp. The court case, the first step is to ascertain the facts, to make a judgment on the basis of facts, and ascertain the facts to provide evidence to prove that it requires the parties. Which raises the question, who will be responsible for providing evidence and provide no evidence for the fact can not be found out how to do? This requires the burden of proof. In fact, the burden of proof is among the most valuable than the allocation of the burden of proof. The reform of China's ongoing trial way, is gradually weakening range court duties, the burden of proof is greatly inclined to both parties, formed by the parties burden, a people's court as a supplement to verify the situation. In such a situation, the allocation of the burden of proof is fair, directly affects the litigant lawsuit is, if the allocation of the burden of proof is unfair, unreasonable, will directly affect China's civil litigation system implementation, affect the belief of the law and abide by. Therefore, the allocation of the burden of proof must create a social justice based on, equality of opportunity, so that all parties in the litigation truly realize fairness and justice procedure.

1, analysis of the distribution of burden of proof positive

Distribution rules of burden of proof, position in the civil litigation evidence system is very important. The distribution of burden of proof in modern is evolved from the rules of burden of proof in Rome law and Rome law, rule is "the plaintiff has the burden of proof", "Zhang Zhiren mainly a proof obligation, as the negation of man without" (of course, some scholars on whether the rule from Rome law question). In the framework of modern civil procedure, rules of burden of proof and the new concept, it becomes a problem of application in litigation in the civil substantive law and the civil procedure law. Therefore, in the formulation of rules of burden of proof in civil action, it is necessary to consider the legal norms of civil procedure law entity, requirements may also be considered in civil litigation and its inherent. As already mentioned, the allocation of the burden of proof in civil procedure, although is a problem to solve, but from a practical perspective, is actually the allocation of the facts of the case is unclear at the risk of losing in the litigation between the parties. For example, "" food hygiene law of the people's Republic of China the thirty-seventh stipulation: "the health administration departments of local people's governments at or above the county level to have caused food poisoning or there is evidence that could lead to food poisoning accident, may take the following provisional measures on food production operators." When the article refers to "there is evidence that could lead to food poisoning accident" the essential fact is still unclear, the provisions that this provision will apply the law court, the administrative department of health shall not bear the litigation consequences, that is the burden of proof of the risk of losing. In fact, how to correctly deal with the risk of losing a lawsuit, namely whether reasonable allocation of the burden of proof between the parties, is a relatively complex problem. Of course, no matter how to say, law or judge as much as possible a check to the objective facts, as far as possible the distribution rules of burden of proof in the performance of the sense of the burden of proof, because the results of significance is in the presence of unknown fact shall not take no way.

So, can we grasp the distribution rules of burden of proof in some of the popular, simple method? To say that the simple, according to the legal classification of elements and apply the specific provisions of relevant laws on the allocation of the burden of proof shall be. The party, if not understand legal essentials classification say or do not know the specific provisions of the law, may be learned by judges in litigation guidance, can also consult a lawyer. But it is not in their own hands the allocation of the burden of proof standard, more practical mind. Civil litigation is various, complex, objectively created the allocation of the burden of proof complexity. From the analysis of specific cases is the most popular, the most direct expression method, but the case itself cannot explain the distribution of the burden of proof of the general rule, can produce some perceptual knowledge. Even so, we still think it necessary to first through two case studies to feel, then as far as possible the expression method is easy to understand, the distribution rules of burden of proof and summarized.

A case:

In 2004 August, the plaintiff Wang (male) to the defendant to find Zhao (female) in the 1 million, the grounds, to the people's court. The plaintiff Wang claimed: 2002 September, the defendant zhaomou to home to start building materials factory on the grounds, to the plaintiff Wang loan 10000 yuan, with Wang and Zhao is love, when Wang to home parents asked Zhao issue IOUs, Zhao said not to write, then by Wang in a piece of paper to write arrears content, let Zhao signature, Zhao Mousui in the bill signed his name. Due to the love not, but Zhao also does not have long-term borrowing, Wang sued to the court request Zhao repayment 10000 yuan. The defendant zhaomou in court argued that: its never to the plaintiff Wang borrowed money. The argument would be: the original, the defendant in the same unit work acquaintance, in 2001 September, Wang really pursued Zhao Zhao, but has not been clearly promised and Wang Mou to establish a relationship; Zhao Department graduated from specialized secondary schools, how could not write ious? Wang court provided on the ious Zhao signature, although it is a hand written by Zhao, but Zhao in the leisure practice writing their name for the, Wang Mou in found Zhao calligraphy paper after increased the IOUs, vindictive love fails, even extortion. Mediation stage of the court, the defendant zhaomou said no money to repay, even though the money should not return, to the mediation is invalid.

The original, the defendant both v., argued, there seems to be possible, in fact is unclear circumstances, the wisdom and experience of the judges should play a role, namely, the judge must according to the distribution rules of burden of proof to make a proper authentication between the two, but can not refuse the referee. This case is whether to reflect lending relationship and whether the lending relationship exists and ious controversy, so the key lies in the authenticity and legality of ious. The parties shall understand how the judge will judge, on both sides of the controversy as a party, how to make the judge that his statement is true. In fact, the judge to the evidence of the process, itself is a subjective understanding of the objective process, we can through the certification process the judge to grasp who bears the burden of proof, how to bear the burden of proof, observe the mechanism of the allocation of the burden of proof from. Now, we come to the judge in this case is how to judge the evidence, the facts of the case. The judge think:

First, the plaintiff Wang and the defendant zhaomou together during the work had a love relationship or the presence of Wang Zhao in pursuit, may produce the economic exchanges between the two people; second, even if the defendant zhaomou cloud, name is writing ious on the formation, namely Zhao leisure calligraphy there is the possibility, but as a moderately educated person with full civil capacity, also to write his name. Properly, in order to prevent unfavorable consequences occur, and Zhao did not care. The crux of the problem lies not in this, but in Zhao did not provide any evidence to prove her facts; third, the original ious from Wang Mou's appearance, there was no rub or ious folding over the traces, the IOU "Zhao" two word position also in place specification should be in arrears IOU, namely "Zhao" two characters in ious in place, not by word formation; fourth, as Zhao said, the plaintiff Wang is endless forged IOUS and through civil litigation to extort money, is a criminal suspect, the work of Zhao speaking, ten thousand yuan is not a small number, but its are ambiguous attitude, just not in arrears passive defense, contrary to common sense. Therefore, from the perspective of the distribution of burden of proof, the plaintiff Wang provides IOUs to prove and the accused Zhao lending relationship between fact, completed the sense of burden of proof procedures. Then, the defendant Zhao Mouruo denied the arrears, should provide evidence to prove or defense full. In this case the defendant zhaomou neither provide rebuttal evidence, the defense also contrary to common sense, the destruction of the plaintiff Wang on the ious of the facts contained in a formatted, reasonable expectations, so that normal lending relationship appeared disorder, should be negative evaluation. Therefore, the plaintiff Wang provides ious for effective evidence, it can be proved in the original, the defendant debtor creditor relationship between.

We saw the biggest characteristic, the judge in the process of authentication is not only emphasizes the independence of judges to judge the evidence of free proof, also stressed that restrict the distribution rules of burden of proof of the law of the free evaluation of evidence, but also emphasizes the process and results of open, fully compatible with the modern from the proof of the judge ruled that the evidence requirements. In the certification process of this case, the judge did not too rigid, mechanical, single application of rules of evidence, but by conscience and rational judgment, and according to the inner conviction that the facts of the case. We see the judge in order to pursue the legal truth as the basic requirements, the distribution rules of burden of proof, logic reasoning, the daily life experience, which makes the final decision is based on rational argument, strong persuasion.

Case two (a paper note: this case comes from the "people's Court Daily" January 15, 2002 "theory and practice" edition published):

During the period from 2000 to 2002, the sun garment factory and individual industrial and commercial households Chen do woollen sweater business. Often in a state of uncertainty because of the number of transactions, the price, the two sides had not signed a written contract normative, but develop trade take rolling mode. With the changes in the market, reduce the underwriting profit areas, Chen was used to adjust the direction of their business, from the beginning of the end of 2003, Chen will no longer buy sweater from sunshine garment factory. By the end of 2003, Chen still owed the sunshine garment factory sweater, amounted to more than 8 yuan. In many times for the case of no avail, sunshine garment factory with 2004 October Chen issued ious appealed to court, asked Chen to pay off the debts. During the trial, the sun garment factory does not provide any other evidence to the court.

In the first stage of the court investigation, Chen on his writing ious that did not raise objections, but stated on the ious content was questioned, think IOU is the legal representative in the sunlight garment factory of Kim deceived in writing, before writing, reconciliation, not quantity on the previous trading amount, IOUs content is entirely in accordance with the Kim mean, copy of Kim provide draft and. Therefore, Chen believes that the true meaning of IOU is not their own, and the actual amount far, therefore, request the court ordered the sun garment factory provide document, statement, the true definition of arrears amount. The judge rejected the request of chen. A federal judge found, sunshine garment factory provide enough to prove that the original, the defendant ious debt relationship exists, therefore, the effectiveness of the bill shall be adopted. At the same time, because of Chen did not provide account receipts and other relevant materials can not be reconciled. The court of First Instance judgement of Chen to the sunshine garment factory pay more than 8 yuan of debt, and bear the cost of litigation. Chen refuses to accept, in legal appeal period of appeals.

In the second period, the treatment of the case, the judge appeared between three different views, these three views are related with the distribution rules of burden of proof. The first view, the case facts are clear, the sun garment factory already bear their burden of proof, should not be additional the burden of proof, it should be upheld, rejected the appellant's request. The second view, in the first stage, the facts of the case have not yet identified, should be re. When the amount and the amount of debt reconciliation is inconsistent, should be based on the specific amount, in accordance with the law of change. The third view, the sun garment factory has provided the IOUs, but the evidence is not fully. Since Chen has asked thoroughly investigate the reconciliation, in fact, the court shall order the sun garment factory to provide other evidence to support its claims. But the sun garment factory insisted that the IOUs to prove claim was established, refuses to provide the account books. The court may consider decisions based on the facts of the case are still unclear, according to the law retrial. The court of second instance finally adopted third kinds of opinions. Let us have a look third opinions, what is the reason.

First, you and I are two completely different legal terminology. Promissory note is a written certificate of one party to the other party to borrow real or a certain amount of money to each other after issued. After a dispute, which is a direct evidence of the most powerful, lawsuit, need not to collect and produce other evidence, can completely support the claim. You are a party to deal with the other party or to the person, property damage, should be a written certificate of payment to the other party a certain amount of money. There must be, IOUs issued by dealing damage behaviors of legal facts as a precondition, single ious itself can not be fully proves that debt relationship exists between rationality and legitimacy, especially in the other party of IOUS holding objection, under article as evidence alone, there is evidence of defects. At this time, it is necessary to ascertain the facts are ious sources and IOUs. In reality, if one party to another issue IOUs is often motivated by oneself self-interest considerations, has a special background. For example, the creditor to the debtor for debt several times, in public, in order to save face, fortunately the debtor as soon as possible in order to get away, not according to their wishes to write an IOU; for instance, some debtors to creditors in even issued IOUs, no repayment of the idea, on account of it, and creditors require amount and actual amount of liabilities match doesn't care, results, IOU amount and the actual amount of debt is not consistent. So find out facts based on the consideration of reconciliation, to determine the repayment amount should be necessary. In practice, the court often on the legitimacy of the evidence, objectivity, relevance given considerable attention, and sufficiency of the evidence is insufficient.

Second, in civil proceedings, parties to own facts, it shall present evidence to prove. In one, during the trial of second instance, Chen to reconciliation, but according to the usage of trade and common sense, only the sun garment factory to provide a reconciliation document Chen signature. Even if Chen provides its own books, because only one signature, also lack of enough evidence of effectiveness. Chen can provide evidence, but there is proof barrier. At this point, if still dogmatically cling "who advocates, who proof" principle, on their claims with a completely sufficient evidence in Chen can not be the case, the evidence can not judge it loses, is obviously inappropriate, and extremely unfair.

Visible, the allocation of the burden of proof should not only fair, but also reasonable. Sunshine garment factory was in providing ious situation, has met the requirements of proof, the case facts are clear. However, as the accused man has raised objections to slip on the amount, distribution of the burden of proof from the point of view, this requires Chen will slip on the numbers and the actual debt inconsistent proof. But Chen can only provide evidence, the evidence also has certain rationality -- each delivery for orders, and supplier in the supply of single, single point that the object is accuracy, IOU figures so, it should be said that Chen completed his burden of proof. In this way, we will find, proof has led to the facts of the case is unclear. In order to further ascertain the facts, the burden of proof time moved to sun garment factory, the judge asked the plaintiff as sunshine garment factory to provide books for reconciliation is reasonable, if it can't provide the account books, in accordance with the rules of burden of proof, should bear the legal consequences not conducive to their own.

Through the above two cases analysis can be seen, the rules of burden of proof is a very important legal system, it is directly related to the parties in the litigation is risk.

The general rule and principle 2, the allocation of the burden of proof

Distribution rules of burden of proof, it seems very abstract. In fact, the allocation of the burden of proof in the field of the burden of proof is the strongest theoretical, and practical value of the highest, the content is the most complex part of the core issue, which is the allocation of the burden of proof standard. Whether a judge or a party, do not belittle this basic theory, only to explore the regularity of distribution of burden of proof in theory, can handle very skillfully in practice. From the fair sense, design scheme of distribution rules of burden of proof, should be on the original, the defendant equality. In general, the plaintiff is often motivated by the need to protect their rights, and to protect their rights, we must prove their legal existence of civil rights, civil legal relationship between is legitimate or prove with the other party, but also prove right is how to against the specific infringement result, etc.. Obviously, the burden of proof of the plaintiff is heavier, bluntly, is the risk of losing is greater. Thus, in some special circumstances, if the defendant to bear part or all of the burden of proof, the unequal situation will change. That is to say, if a serious imbalance in the status of the parties in the litigation process, and the plaintiff was obviously in a weak position, so if the defendant also shoulder some of the burden of proof, it can produce fair and reasonable in the original, the defendant effect. In addition, the fair principle significance of the evidence law, but also for the allocation of the burden of proof should be given conditional capacity, relatively strong party. Parties to a civil action ability in the litigation process, provides evidence of the conditions are different. For example: a party would occupy the evidence material; or one of the parties from the evidence material very close and easy to get; or one of the parties have the professional knowledge of evidence sense, so in the allocation of the burden of proof, would preclude the cognitive impairment, and the reasonable distribution of the burden of proof. The allocation of the burden of proof of actual solution is the benefit of litigation. That is to say, to make the proceedings will be fairly settled in a short period of time, must use the distribution rules of burden of proof.

According to the actual situation in our country at present, should learn from and use the theory of classification of legal requirement, interests distribution rules of burden of proof as the supplement, and the general rules of civil burden of proof. As the parties, properly understand the distribution of the burden of proof of principle is not redundant, the so-called knows its however, also want to know why. In our country, the rules of burden of proof in civil proceedings inherited some of the theory of continental law system, especially the German scholar Rosen Begg (Rosenberg) was founded on the "legal elements classification", is very famous. This doctrine of Rosenberg in accordance with the law the wording of article, structure, sequence of application of legal norms, will be divided into four types: right, right to hinder the specification, occurrence specification extinguishment of rights and restricting rights standard specification. In the above classification, because the right place and kill time will be very obvious, so easy to distinguish, but rights norms and right to hinder the code more difficult to distinguish. Must be in accordance with the law shall form a distinction, because of this, put forward the corresponding rule of the distribution of burden of proof in general. Rosen Beck thinks, those who claim there are parties, shall be rights of legal requirements existing facts shall be proof; there any negative rights of the parties, should be right against legal requirements, or the right to eliminate legal requirements, legal requirements or the existence of power restriction of burden of proof by facts.

In China's current judicial practice, in the "Civil Procedure Law" sixty-fourth article "who advocates, who bears the burden of proof on the basis of the principle of", from the basic viewpoints of legal essentials classification theory, the general rule of the distribution of burden of proof. The Supreme People's court "several regulations about the civil action evidence" the second stipulation: "the basis for his claim facts or rebuts the facts have the responsibility to provide evidence to prove the. There is no evidence or the evidence is not sufficient to prove the claim, by the proof should bear the adverse consequences." also according to some characteristics of cases, and special provisions of the distribution of burden of proof. Then, in the proof of the extent, the present is considered to become legal essentials classification said a minimum of said, also called the civil burden of proof of the general rule, that is: if the parties claim the rights, should occur in the entity shall bear the burden of proof the lowest as fact; where the other party has claim obstacles, the substantive law should have the right to barriers on the burden of proof requirements specified minimum facts; where the other party has rights advocates have been eliminated, should be the right of substantive law shall bear the burden of proof on the elimination of minimum fact. When the Party advocated the fact to be proved is unknown, and prove them in both parties can not be the case, the judge can also according to the size of the facts to be proved are classified, in order to determine the burden of proof of the parties to deal with, and according to the burden of proof performance effect, make corresponding to the referee, the results will fail to static allocation of burden of proof the liability adversely affect a party. To sum up, the general rules of distribution of burden of proof in China mainly follow the following principles:

One is the allocation of the burden of proof in principle first according to the provisions of the law. This principle has a long history, as early as in the Rome law there, "French Civil Code" take the lead in the entity law provides for the distribution of the burden of proof, the legislation has had a great impact in the continental law system countries, and even affect the legislation in common law countries. For example, in the implementation of case law countries America, in some substantive law of the burden of proof for the distribution, USA "Uniform Commercial Code" provisions in article 4-202: "2 if the bank received the ticket, notice or payment, in the midnight deadline, banks make appropriate behavior is as timely; if the proper behavior of beneficiary's Bank within reasonable limits later than the time, may also be timely, but the bank shall bear the burden of proof." The civil law in our country there are many about the allocation of the burden of proof rules, such as the "general principles of civil law" 123rd stipulates: "a high-altitude, high pressure, flammable, explosive, toxic, radioactive, the high-speed transport are highly dangerous operation caused harm to the surrounding environment, it shall bear civil liability; if can prove that the damage was deliberately caused by the victim, he shall not bear civil liability." Moreover, the law 126th stipulation: "shelving material, hanging objects buildings or other facilities and building collapses, falling, falling caused on the injury to others, its owner or manager shall bear civil liability; but to prove no fault except." In addition, the "contract law" of the people's Republic of China has provided a lot about the allocation of the burden of proof.

The two is the allocation of the burden of proof according to the judicial explanation. If no specific provisions on allocation of burden of proof in the substantive law, the judicial interpretation can be remedied. For example, in July 14, 1992 the Supreme People's court "on the application of 'problems of Civil Procedure Law of the PRC' opinions" provisions of article seventy-fourth: "in the litigation, the parties to submit their ideas, have the responsibility to provide evidence. But in the tort action, the fact of infringement of the plaintiff, the defendant denied by the defendant, the burden of proof:......" The provisions of article seventy-fifth of the judicial interpretation: "the fact without proof of the parties: (1) one party against the other party a statement of the facts of the case and the claim, made it clear that recognition; (2) the facts and laws of nature and the theorem as everyone knows; (3) according to the law or the known facts, can infer the other facts; (4) have been confirmed by the people's court in a legally effective judgment of the facts; (5) has been proved as a valid certificate of the fact." Of course, the Supreme People's court "on the civil procedure rules of evidence" is also on the allocation of the burden of proof carried out a special provision, such as the judicial interpretation of the provisions of article fifth: "in a contract dispute case, alleges the establishment and entry into force of the party, shall bear the burden of proof for the conclusion and entry into force of the facts; advocate the contract relationship change, rescission, termination, revocation of the party should bear the burden of proof of contractual relation facts. The contract is performed by the dispute, have to fulfil the obligations of the parties shall bear the burden of proof. The dispute about the power of attorney, which maintains a representation of the party should bear the burden of proof." Sixth then also states: "in the labor dispute case, because the employer to dismiss, removal, dismissal, dissolution of the labor contract, to reduce the calculation work of labor compensation, and other decision of the labor dispute, the burden of proof by the employer."

The three is the legal premise free expressly, the burden of proof can be allocated according to the rule of thumb. Empirical rules are concluded tend to belong to the nature of presumption and presumption, general according to the evidence has confirmed the fact, the method of proof, it is a method of logical proof. Reasoning in the litigation, reasonable allocation of the burden of proof between the parties. Because of the legal reasoning belongs to the fact free license, so, no presumption is a party should bear the burden of proof, in order to avoid the existing basis of experience rule reasoning accident. Under normal circumstances, can be to deny the fact inference from two aspects: first, through the evidence to the contrary between non logical premise in a concrete case fact and inference fact; two, the premise of contrary evidence legal presumption is false. As the court, should actively create conditions for the parties to provide proof of.

Four is the burden of proof can be allocated according to the principles of fairness and good faith. This is the allocation of the burden of proof authority of judges in the field, which is more integrated into the factors of judicial discretion, require special caution. The principles of fairness and good faith was one of the most fundamental principle in the civil law of the continental law system countries. Many legal relationships in real life are allocated according to the entity law, justice and honesty is the foundation of distribution. The principle of good faith is the main civil relations between maintaining the balance of interests and the scale of the standard, it is opposed to harm others to benefit oneself, advocated to treat their attitude to deal with the affairs of others, to ensure that all parties can maximize possible benefits. This principle is applied to the distribution of the burden of proof is mainly in order to overcome the following problems: one is the malicious lawsuit. The malicious lawsuit is not the one to protect their legitimate rights and interests of litigation, the purpose is often to deliberately default on its debt, slander the reputation of others, the waste time, contrary to nature and purpose of legislation of civil litigation. So in the distribution of burden of proof, to reflect on the malicious lawsuit sanctions. Two is the delay of action. Many parties in order to delay action, do not let the other side as soon as possible to achieve the legitimate rights and interests, repeatedly put forward new appraisal, request to postpone the hearing, repeated challenge, request to extend the time limit for adducing evidence deliberately, behind the aim is often to withdraw capital, transfer of property, increase litigant cost etc.. The burden of proof should obviously will this situation as an important reference assignment. Three is the first admission, and some are even litigation, litigation denied admission. Four is the concealment, destruction of evidence. Some parties to let the fact is unclear, so that the burden of proof of the other party loses, deliberately concealing or destroying evidence, at this time should be re distribution of the burden of proof according to the principle of good faith. In addition, according to the principle of fairness in the allocation of burden of proof. Should be fully taken into account and the sources of evidence, evidence of technical, professional and the burden of proof, the allocation of the burden of proof between the parties and reasonable. When necessary, for the sake of fairness, the judge should also lack authority to collect evidence to make up for the proof ability. The Supreme People's court "on the civil evidence regulations" article seventh implementation of the principle of good faith and fair principle, states: "there is no specific provisions in the law, in accordance with the provisions and other judicial interpretations of the burden of proof cannot be determined, the people's court according to the fair principle and the principle of honesty and credit, the parties undertake comprehensive proof capacity factors to determine the burden of proof."