After the "extremely probable" standard of proof was established in Article 73 1 of the Supreme People's Court Provisions on Evidence in Civil Proceedings, which came into effect on April 1 2002, the standard of proof in civil proceedings in China gradually got rid of the shackles of the standard of proof in criminal proceedings and established its own independent system. Article 65438+ 1 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Interpretation of the Civil Procedure Law), which came into effect on February 4, 20 15, makes a more accurate statement on this standard, that is, "the evidence provided by the people's court to the parties with the burden of proof shall be examined in combination with relevant circumstances, and the third paragraph of this article, "Article 109 specifically provides a stricter proof standard of" excluding reasonable doubt "for some cases, that is," if the parties prove the fact of fraud, coercion or malicious collusion, and prove the fact of oral will or gift, and the people's court is convinced that the possibility of the fact to be proved can eliminate reasonable doubt, it shall consider that the fact exists. "Obviously, the interpretation of the Civil Procedure Law attempts to establish different standards of proof in civil proceedings.
On the hierarchy of the standard of proof in civil proceedings, foreign legal circles have conducted many discussions and applied them in judicial practice. For example, on the basis of adhering to the principle proof standard, the two legal systems have designed different levels of proof standards according to the types and characteristics of the facts to be proved. Britain has the so-called "elastic proof standard"; The United States has a "clear and convincing standard of proof"; Sweden in civil law system has designed different levels of proof standards according to the different nature of the facts to be proved; There are also provisions or matters in German civil law that are higher or lower than the principle standard, which reflects the flexibility and adaptability of the standard of proof in civil litigation. However, it should be noted that the hierarchical standard of proof discussed or applied in foreign civil proceedings essentially emphasizes the difference of the probative force of the facts to be proved in different situations and the probability of the judge forming an evaluation certificate, but it is never applicable to the standard of proof in criminal proceedings; However, article 109 of the Interpretation of Civil Procedure Law in China attempts to directly introduce the standard of proof in criminal proceedings into the construction of the standard system of proof in civil proceedings, which not only ignores the hierarchical environment and correct application rules of foreign standards of proof, but also does not conform to the actual situation in China and is not conducive to the scientific development of civil procedure law in China.
Second, the standard of "excluding reasonable doubt" confuses the difference with the standard of proof in criminal proceedings.
The standard of grade proof has been developed and improved in the common law system, especially in the British precedent, the standard of proof of "excluding reasonable doubt" has been applied to some facts in civil cases; In the United States, matters of proof to which special standards of proof apply include fraud, oral wills and other matters. On the surface, this seems to provide a reference for establishing the standard of proof of "excluding reasonable doubt" in Article 109 of the Interpretation of Civil Procedure in China. However, this provision actually misunderstood the theoretical and practical operation of the standard of proof in the common law system, blurred the language environment and judicial background of the application of the above rules in the common law system, and failed to distinguish the above matters to be proved from those stipulated in China. In the study of comparative law involving the standard of proof, the institutional background and legal thinking mode on which various models of standard of proof depend are mostly ignored.