Common sense judgment: summary of important knowledge points of inversion of burden of proof
Inversion of burden of proof refers to a distribution system of burden of proof. Based on legal provisions, it usually means that one party (usually the plaintiff) who files a lawsuit does not bear the burden of proof for some reason, while the other party (usually the defendant) bears the burden of proof because of the existence or non-existence of certain facts. If the party cannot prove this, it is presumed that the plaintiff's factual claim is established. In the general rules of evidence, "whoever advocates gives evidence" is the general principle of burden of proof distribution, and the inversion of burden of proof is the exception to this principle.
First, the theoretical categories and components
(A) the pre-nature of the basic norms
The premise of inversion of burden of proof is the general principle of burden of proof distribution, which is based on the classification of modern legal elements. The classification of legal elements is called the basic norm of assigning the burden of proof. It is in this sense that the classification theory of legal elements has become a "normative theory". Only when the burden of burden of proof can not be correctly implemented according to the classification of legal elements, the inversion rule of burden of proof has room and necessity to play its role. Therefore, the inversion of burden of proof is based on the general principle of burden of proof distribution in theoretical logic. Without this general principle, there is no inversion of the burden of proof.
(b) Invert the position of the object
In a case where the burden of proof is inverted, it does not mean that all the facts of the case are "inverted" and borne by the other party, but only that some important facts in a specific case are inverted and borne by the other party. The so-called inversion of burden of proof only exists in the field of infringement. In ordinary tort cases, if the plaintiff's claim for damages is to be satisfied by the court's judgment, he must claim and prove the following four elements at the same time:
1. The defendant committed an infringement;
2. The plaintiff suffered damage;
3. There is a causal relationship between the cause facts and the result facts of infringement;
4. The defendant is subjectively at fault, and the plaintiff bears the burden of proof for these four elements.
(c) Facts to the contrary to be proved
The reason why the burden of proof is called "inversion" is that the burden of proof for specific elements has changed not only in the subject, but also in the object that the burden of proof points to, that is, the object of proof. The object of proof in the case of "inversion" and the object of proof in the case of "upright" are exactly opposite in nature.
(d) ensure the interchangeability of themes.
The difference between the inversion of burden of proof and the distribution principle of burden of proof is that the other party bears the burden of proof for the inverted facts. The counterpart here is determined according to the general rules of burden of proof distribution. For example, according to the general distribution principle of burden of proof, the plaintiff should bear the burden of proof for a certain fact, but the defendant will bear the burden of proof for the opposite fact under the effect of inversion of burden of proof. Under the adjustment of the litigation lever of the inversion of the burden of proof, not only the nature of the object of proof has reversed, but also the position of the subject of responsibility has changed in space. What needs special emphasis here is that the inversion of burden of proof not only refers to the inversion from plaintiff to defendant, but also refers to the inversion from defendant to plaintiff.
Second, the characteristics of the inverted burden of proof
China public education experts summed up the following characteristics:
(1) The inversion of the burden of proof means that the party making the claim or the party actively claiming does not bear the burden of proof for some reason (fault or causality), but the other party bears the burden of proof.
The principle of "whoever advocates gives evidence" actually means that whoever puts forward a claim or defense should give evidence for the existence of this claim or defense fact. Specifically including:
1. If one party makes a request to the other party, it shall provide evidence, and the object of proof shall be the basic fact that the right of request exists.
2. After one party makes a claim, the other party claims the claim and shall bear the burden of proof.
In substantive law, there are many reasons or types of defenses, such as the defense that there is no debt in contract litigation and the defense that the time limit has expired.
The transfer of the burden of proof does not exempt either party from the burden of proof. It is still the embodiment of the rule of "who advocates who gives evidence". It only changes the burden of proof of the parties, that is, the subjective burden of proof, and the burden of proof is often transferred back and forth between the parties with the progress of litigation. The inversion of burden of proof breaks through the rule of "who advocates who gives evidence", exempts the proposer from the burden of proof for the existence of a certain reason, and shifts this responsibility to the opposing party. Therefore, it is an exception to the basic distribution of burden of proof in law, so it is called "inversion".
(two) in the inversion of the burden of proof, the other party should bear the burden of proof for the existence or non-existence of a certain reason.
The elements of civil liability, especially tort liability, generally include damage facts, causality and fault, and the existence of these elements also constitutes the key to determine whether the plaintiff wins the case. However, in the case of inverted burden of proof, the plaintiff does not have to bear the burden of proof for the existence of these factors, but the defendant should bear the burden of proof for the existence of certain facts.
The facts proved by the defendant are clearly stipulated in the substantive law, and the reasons for proof mainly include two categories: one is to prove that he is not at fault; The second is to prove that there is no causal relationship. In some cases, the proof of these two facts is usually combined. For example, the defendant proves that the damage was caused by a third person, which not only shows that the defendant is not at fault, but also shows that there is no causal relationship between the occurrence of the damage and the defendant's behavior. But in other cases, these two problems may be separated from each other. For example, if the defendant proves that the damage was caused by force majeure, it can show that he is subjectively innocent and should be exempted from liability.
(3) When the burden of proof is reversed, the plaintiff who initiated the lawsuit should also bear the burden of proof for the existence of some facts.
For example, in the responsibility of highly dangerous operations, at least the plaintiff must prove that the danger is caused by the defendant's behavior rather than a third party, otherwise even the defendant of the litigation subject can't be clear. How to sue? Who are you suing? For another example, in the inversion of the burden of proof of medical malpractice, the hospital, as the defendant, should bear the burden of proof for the scientific, timely and faultless facts of its behavior, while the patient should bear the burden of proof for the harmful facts of the defendant's behavior, and the harmful consequences should bear the burden of proof for the facts related to the defendant's behavior.
(4) In the case that the burden of proof is reversed, the defendant shall bear the responsibility of proving the existence or non-existence of a certain fact. If it cannot be proved, it shall bear the consequences of losing the case.
On the surface, the inversion of burden of proof is the inversion of burden of proof. In fact, it is the inversion of the responsibility to prove the existence or non-existence of a certain fact, and it is a question of how to allocate the burden of proof between the parties.
Because once the burden of proof is reversed, the party whose burden of proof is reversed will bear a heavier burden of proof. If the legal reasons cannot be proved, it is presumed that the party making the claim is established in fact, which will affect the outcome of the lawsuit as a whole.
Third, the relevant legal provisions on the inversion of burden of proof.
(1) Several Provisions of the People's Court on Evidence in Civil Proceedings
Article 4 stipulates: "The following tort litigation shall bear the burden of proof in accordance with the following provisions:
(1) In a patent infringement lawsuit caused by a new product manufacturing method invention patent, the unit or individual that manufactures the same product shall bear the burden of proof that its product manufacturing method is different from the patented method;
(2) In the tort litigation of damage caused by highly dangerous operation, the injurer shall bear the burden of proof for the fact that the victim intentionally caused damage;
(3) In the lawsuit of compensation for environmental pollution damage, the injurer shall bear the burden of proof for the exemption provided by law and the fact that there is no causal relationship between his behavior and the damage result;
(4) The owner or manager shall bear the burden of proof for the tort lawsuit of the building or other facilities and the shelving, collapse, falling off or damage caused by the building;
(5) In an infringement lawsuit caused by raising animals, the animal breeder or manager shall bear the burden of proof that the victim is at fault or the third party is at fault;
(6) For infringement litigation caused by defective products, the producer of the product shall bear the burden of proof for the exemption provided by law;
(7) In an infringement lawsuit that * * * causes damage to others due to the same dangerous behavior, the person who commits the dangerous behavior shall bear the burden of proof that there is no causal relationship between his behavior and the damage result;
(eight) in the tort litigation caused by medical behavior, medical institutions should bear the burden of proof that there is no causal relationship between medical behavior and damage results and that there is no medical fault.
Where the relevant laws have special provisions on the burden of proof in tort litigation, such provisions shall prevail. "
(II) Interpretation of Several Issues Concerning the Application of People's Republic of China (PRC) Contract Law (I)
Article 13 stipulates that "the debtor's delay in exercising the due creditor's rights as stipulated in Article 73 of the Contract Law has caused damage to the creditor" means that the debtor fails to perform the due creditor's rights and claims the due creditor's rights from his debtor in monetary payment through litigation or arbitration, resulting in the creditor's due creditor's rights not being realized.
If the secondary debtor (i.e. the debtor of the debtor) does not think that the debtor is lazy in exercising its due creditor's rights, it shall bear the burden of proof. "
(3) Interpretation of the people's court on several issues concerning the implementation of the Administrative Procedure Law of the People's Republic of China.
Article 26 stipulates: "In administrative proceedings, the defendant shall bear the burden of proof for the specific administrative act he has taken.
The defendant shall, within 10 days from the date of receiving the copy of the indictment, submit the defense and provide evidence and basis for the specific administrative act; If the defendant fails to provide it or fails to provide it within the time limit without justifiable reasons, it shall be deemed that there is no evidence or basis for the specific administrative act. "
(4) General principles of civil law
Article 126 stipulates: "If a building or other facilities, as well as the shelving and hanging objects on the building collapse or fall off, causing damage to others, its owner or manager shall bear civil liability, unless he can prove that he is not at fault."
(5) Copyright Law
Article 52 stipulates: "If a publisher or producer of a copy cannot prove that its publication and production are legally authorized, and a publisher or lessor of a copy of a film work, a work created by a method similar to filming, a computer software or an audio-visual product cannot prove that its published or rented copy has a legal source, it shall bear legal responsibility."
(6) Patent Law
Article 57 stipulates: "The exploitation of a patent without the permission of the patentee is an infringement of the patent right. In case of any dispute, the parties concerned shall settle it through consultation." Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).
Where a patent infringement dispute involves an invention patent of a new product manufacturing method, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method; Where a patent for utility model is involved, the people's court or the administrative department for patent affairs may require the patentee to issue a search report made by the patent administrative department of the State Council. "