The burden of proof system in civil litigation is the core of the evidence system in civil litigation. Its basic principles and guiding ideology are different from criminal litigation and administrative litigation. In criminal proceedings, the public prosecutor generally bears the burden of proof; In administrative proceedings, the defendant, the state administrative organ, generally bears the burden of proof; However, the burden of proof in civil litigation is not based on the litigation status or litigation status of the parties, and the subject of burden of proof is not fixed on the plaintiff or the defendant, but shared by the original and the defendant according to certain distribution principles. Because of the equal status of the parties in civil activities, they have the same or similar conditions to know the truth of the case. In litigation, the parties are faced with the same opportunities to collect, investigate and provide evidence. Therefore, according to the different nature of the case, different parties bear the burden of proof, which can better reflect the fairness and justice of the lawsuit.
First, the distribution rules of burden of proof in civil litigation in China
1, general principles of burden of proof distribution in civil litigation. The burden of proof, also known as the burden of proof, has two basic principles. Among them, the general principle is the principle of "whoever claims, who gives evidence" stipulated in Article 64 of China's Civil Procedure Law, which embodies the general requirements of litigation justice and is also conducive to ensuring substantive justice. This is the legal origin of the principle of "who advocates, who gives evidence" in traditional civil litigation theory. But this principle often lacks maneuverability in practice. In order to meet the needs of litigation practice, on the basis of drawing lessons from the theoretical research results of civil litigation, the Provisions on Evidence in Civil Litigation further clarifies the general rules of burden of proof distribution in Article 2, that is, the parties have the responsibility to provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are based. If there is no evidence or the evidence is insufficient to prove the facts identified by the parties, the parties with the burden of proof shall bear the adverse consequences. Judging from the above provisions, it includes two aspects: one is a comprehensive summary of the meaning of the burden of proof in civil litigation; The second is to clarify the general rules for the distribution of burden of proof. In the field of civil litigation theory, the distribution of burden of proof is the core content of the civil burden of proof system and is considered as the "backbone of civil litigation". The problem of burden of proof in judicial practice is a problem that every civil case will encounter, and the distribution of burden of proof in individual cases is complex and diverse. Therefore, how to distribute the burden of proof scientifically, fairly and justly is very important.
How to distribute the burden of proof scientifically, fairly and justly? The author thinks that we should first understand what is the burden of proof and what is its connotation. Burden of proof, also known as burden of proof, means that the parties have the responsibility to provide evidence to prove their claims. It includes the burden of proof in the sense of behavior and the burden of proof in the sense of result. The burden of proof in the sense of behavior means that the parties have the responsibility to provide evidence for their claims. "Who advocates, who gives evidence" is the most typical summary of the burden of proof in the sense of behavior. Behavioral liability is an unconditional burden of proof in the process of litigation, which is derived from the responsibility claim of the parties. It can be repeated many times with the change of one party's degree of proof, which is a dynamic burden of proof. It is a kind of burden of proof that can be transferred between the parties because of the strength of one party providing evidence. In a specific case, when the plaintiff provides evidence according to the requirements of the burden of proof to convince the judge of the existence of his claim, he has fulfilled the burden of proof, thus exempting him from the burden of proof. At the same time, the judge who tried the case basically became convinced of the facts proved by the plaintiff in this certificate, and the burden of proof of the plaintiff has begun to shift, and the burden of proof in the sense of disproof has begun to occur. When the defendant provided new evidence to weaken the plaintiff's proof, so that the judge could not be convinced of this proof, the defendant actually fulfilled the burden of proof in the sense of disproof. At this point, the burden of proof once again shifted to the plaintiff.
In short, the burden of proof in the sense of behavior is constantly shifting between the parties around the judge's judgment and conviction of the facts of the case. What should I do if the burden of proof in the sense of the applicable behavior of the case cannot find out the facts? A judge cannot refuse a judgment because the facts of a case are unclear. How to judge in the case of unclear facts requires the judge to use the burden of proof in the sense of result to make a judgment. The burden of proof in the sense of result, also known as objective burden of proof and substantive burden of proof, refers to the responsibility of the person who bears the burden of proof according to law to bear the adverse consequences when the truth of the facts to be proved is unknown. The burden of proof in the sense of result is not drawn by the responsibility advocated by the parties, but is preset by law and an unshirkable burden of proof. Only when the truth of the facts to be proved in a case is unknown can the burden of proof in the sense of result be highlighted, and it is also a conditional burden of proof. Only when the truth of the facts to be proved is unknown can the party with the burden of proof be required to bear the adverse consequences. In a large number of civil cases, the parties provide positive evidence in the sense of behavior, so that the facts of the case can be proved, and the judge can completely obtain all the information he is convinced from the evidence provided by both parties, making the burden of proof in the sense of result useless. Therefore, it is of great significance to define the connotation of burden of proof from the dual meaning of behavior and result for improving the efficiency of civil trial and promoting the reform of civil trial methods.
Understand the burden of proof in the sense of behavior and the connotation of its transfer, and bear the consequences of the failure of the burden of proof in the sense of result. Let me first talk about the distribution and commitment of the burden of proof in civil cases. The distribution of burden of proof should be solved by civil procedure law and civil substantive law. In the civil procedure law, the general principle of burden of proof distribution is stipulated to supplement the ambiguity of substantive law. According to Article 64 of the Civil Procedure Law and Articles 2, 4, 5, 6 and 7 of Several Provisions on Evidence in Civil Procedure, we can see that it follows the following rules in principle: 1. Where there are provisions in the law, those provisions shall prevail; Two, there is no specific legal provisions, should be based on the judicial interpretation of the Supreme People's Court to determine the distribution of burden of proof; Three, there is no legal or judicial interpretation to determine the distribution of burden of proof, the people's court in the trial of the case should be based on the principle of fairness and the principle of good faith, comprehensive ability of the parties to provide evidence and other factors to determine the burden of proof. For example, Article 2 of the above-mentioned Provisions on Evidence in Civil Procedure stipulates the general rules for the distribution of burden of proof, and Article 5 stipulates that in a contract dispute case, the party who advocates the establishment and entry into force of the contract shall bear the burden of proof for the fact that the contract was concluded and entered into force, and the party who advocates the modification, dissolution, termination or cancellation of the contract shall bear the burden of proof for the fact that the contractual relationship has changed. In case of disputes arising from the performance of the contract, the party who has the obligation to perform shall bear the burden of proof. In case of any dispute over agency right, the party claiming agency right shall bear the burden of proof. It is the rule of burden of proof distribution in contract dispute cases. Article 6 stipulates that in a labor dispute case, if a labor dispute occurs due to the employer's decision of dismissal, expulsion, dismissal, dissolution of the labor contract, reduction of labor remuneration and calculation of the working years of the employee, the employer shall bear the burden of proof. It is the distribution rule of burden of proof in labor dispute cases. Article 7 stipulates that if there is no specific provision in the law, and the burden of proof cannot be determined according to this provision and other judicial interpretations, the people's court may determine the burden of proof according to the principles of fairness, honesty and credit, taking into account the parties' ability to provide evidence and other factors. It is a judicial discretion provision on the distribution of burden of proof, which initially establishes the distribution rules of burden of proof in civil litigation in China. Therefore, when trying a case, the judge should first follow the above-mentioned general rules on the distribution of burden of proof, and then determine the burden of proof sharing of the parties according to specific cases.
2. Exceptions to the general rules of burden of proof in civil proceedings. The so-called "there are principles and exceptions", such as the inversion of the burden of proof. The inversion of burden of proof, also known as the exception of the principle of burden of proof distribution, means that under certain circumstances, the burden of proof in a case should not be determined according to the general principle of burden of proof distribution, but should be allocated according to the distribution standard opposite to the general principle, that is, the burden of proof should not be borne by the party who puts forward the factual claim, but by the other party who denies its claim. For special infringement cases such as compensation for environmental pollution damage, according to the general principle of proof, the plaintiff should bear the burden of proof for the damage facts, the illegality of the defendant's behavior and the causal relationship between the damage facts and the defendant's illegal behavior. However, due to the limitation of objective conditions, the plaintiff has neither the conditions nor the ability to provide evidence, so it is almost impossible to ask him to bear the burden of proof for the causal relationship between the damage facts and the defendant's tort. On the contrary, the defendant has the conditions and ability to give evidence. In this case, in order to balance the interests of both parties and better protect the legitimate rights and interests of the weak in society, the civil substantive law stipulates that this special tort is subject to no-fault liability, and the defendant bears the burden of proof, that is, the burden of proof is reversed.
There are three main situations to set up the inversion of burden of proof: first, to protect the specific subject in substantive law, to clarify the inversion of burden of proof; Secondly, in procedural law, in order to realize specific value, the burden of proof is obviously inverted; Third, there is no clear stipulation in the law or judicial interpretation, but in order to realize the principle of fairness and good faith, the burden of proof is reversed by integrating the parties' ability to provide evidence, especially when the burden of proof is obviously weaker than that of the other party. The third situation belongs to the judge's discretion. Article 4 of China's "Several Provisions on Evidence in Civil Litigation" stipulates the distribution of the burden of proof in special infringement litigation, and the burden of proof is inverted: (1) In patent infringement litigation caused by the invention patent of new product manufacturing method, the unit or individual that manufactures the same product bears 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 environmental pollution damage compensation litigation, the injurer shall bear the burden of proof on the exemption reasons stipulated by law and the fact that there is no causal relationship between the 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) In the tort litigation of personal injury caused by defective products, the producer of the products shall bear the burden of proof for the exemption stipulated by law; (7) In the tort lawsuit that * * * causes damage to people 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; (8) 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 there is no medical fault. Where the relevant laws have special provisions on the burden of proof in tort litigation, such provisions shall prevail. In judicial practice, it should be noted that (1) the application scope of the inversion of burden of proof rule should generally be limited to several special infringement cases stipulated in the General Principles of the Civil Law and other substantive laws and cases in which the defendant must bear the burden of proof clearly in relevant laws; (2) The inversion of the burden of proof does not mean that the plaintiff does not bear the burden of proof, and the defendant proves everything. For example, the plaintiff in an infringement lawsuit should still bear the burden of proof for the infringement facts claiming rights.
3. Burden of proof hinders presumption. The so-called obstruction of proof means that one party refuses to provide, destroy or damage evidence that can prove the facts of the case, thus obstructing the determination of the facts of the case. The presumption of proof obstacle refers to the presumption that the other party's claim is established when one party has proof obstacle. The procedural law stipulates the presumption of burden of proof according to the principle of good faith. Article 75 of Several Provisions on Evidence in Civil Procedure clearly stipulates: "If there is evidence to prove that one party refuses to provide evidence without justifiable reasons, and the other party claims that the content of the evidence is not conducive to the evidence holder, it can be presumed that the claim is established." This provision has good practicability in trial practice, and this provision allocates the burden of proof according to the presumption of nuisance proof. It is to assign the burden of proof to the party who holds the evidence, so that it can be presumed that the facts are established if it refuses to provide, destroy or damage the evidence.
4. Exempt from the burden of proof. Exemption from the burden of proof means that in civil litigation, if a party puts forward a claim and a factual reason, which is recognized by one party (except for identity relationship) or the people's court thinks that it is unnecessary for the party to provide evidence to prove it, the burden of proof is exempted. The main situations are as follows: one party clearly agrees with the facts of the case and the claim stated by the other party; Well-known facts and natural law theorems; Other facts that can be inferred according to legal provisions or known facts; The facts ascertained by the legally effective judgment of the people's court; The fact that there is a valid notarial certificate; Evidence preserved by the people's court. If the parties refute the above facts, they shall bear the burden of proof.
Second, the allocation of burden of proof in China's deficiencies and thinking
The distribution of burden of proof is not only a technical operation rule, but also contains people's most basic concept of fairness, and its application directly reflects the measurement of interests and values. However, different distribution methods of proof may lead to completely different litigation results. Therefore, judges must be cautious when exercising judicial discretion to decide the distribution of burden of proof. Only when the law has no specific provisions on the distribution of burden of proof, and the burden of proof cannot be determined according to Article 7 of Several Provisions on Evidence in Civil Procedure and other judicial interpretations, the judge can exercise discretion according to the specific circumstances of the case. Because it is impossible for the law to stipulate the distribution of burden of proof in every case, even if there is, it cannot be realized without the judge's explanation and value measurement. Therefore, in order to correctly apply the principle of fairness and good faith, judges need to have an overall grasp of the burden of proof system and related regulations, the legislative purpose and spirit of the burden of proof system, and the pursuit of fairness, justice, good faith, order, efficiency, benefit and many other legal values, correctly exercise their discretion, and truly make reasonable judgments. This requires judges to have high political beliefs, strong legal understanding and high moral standards, so that they can accurately grasp this principle in judicial practice, truly embody fairness, honesty and credibility, and play their due role as evidence in litigation.
Judges should also pay special attention to the following issues when determining the distribution of burden of proof in trial practice:
1, consider the substantive justice of the case. Under the premise that it is difficult to allocate the burden of proof according to the distribution method of legal elements, the judge should determine the burden of proof of the parties to the case. First of all, he should examine the possible results after allocating the burden of proof. If the verdict is unfair, it will damage the judicial justice and authority, so he should adjust the burden of proof appropriately to give consideration to substantive justice.
2. Follow the principle of good faith. The principle of good faith requires that the parties shall not seek personal interests for the purpose of harming the interests of the other party, outsiders or the public or by improper means. In a case, if the parties intentionally commit perjury, make inconsistent statements, abuse litigation rights and other situations that violate the principle of good faith, the burden of proof of the other party should be increased or reduced.
3. Consider the parties' ability to provide evidence. In litigation, there is a big gap between the parties' ability to give evidence and their resources, power, experience, knowledge and intelligence. In the case that the burden of proof should be assigned by the judge, the judge should not assign the burden of proof mechanically according to the theory, but should examine the burden of proof of the parties under the guidance of both substantive justice and procedural justice, and appropriately assign the burden of proof according to the ability of the parties to investigate and collect evidence and the difficulty of obtaining evidence.
4. Considering the possibility of the fact being proved, whether the cause of the damage occurred in the control field of the injuring party or the control field of the injured party, etc., the burden of proof was finally distributed reasonably, which reflected the fairness of the judgment result.
To sum up, only by correctly applying the principle of distribution of burden of proof can it help to reduce the litigation burden of the parties, safeguard their legitimate rights, save judicial resources and protect the judges themselves.