Where will the burden of proof be reversed? As some scholars have advocated, the so-called inversion of burden of proof should be completely eradicated, its true colors should be restored, and a distribution system of burden of proof that is different from the inversion of burden of proof that has been generally recognized in theory and practice for a long time should be established. There is no such concept as "inversion of burden of proof". Or should we maintain the existing viewpoint of inversion of burden of proof, further improve it in theory, clearly analyze the definition of the original vague concept, and combine the characteristics of local legal culture to regenerate the inversion system of burden of proof? The author thinks that although the connotation and scope of application of the inversion of burden of proof are still vague, since it has become a widely used distribution rule of burden of proof in judicial practice, the rational and sustainable choice is not to completely deny the rationality of the inversion of burden of proof, but to theoretically explore how to improve the legal provisions of the inversion of burden of proof in China and make the distribution rule of burden of proof more scientific. As mentioned above, there are different opinions on the legislative trend of inversion of burden of proof. I want to explore the countermeasures to improve the inversion rule of burden of proof from the following two aspects.
First, the legal choice of setting the inversion rule of burden of proof?
There are different ways to improve the inversion of burden of proof in law. In the process of discussing the draft evidence law, there are endless arguments about the inversion of the burden of proof. Yang Lixin's summary of the discussion on the inversion of the burden of proof in the China Civil Evidence Law Seminar (III) roughly summarizes the following five different views:
The first opinion is that the provisions of this draft on the inversion of burden of proof grasp the main problems, summarize the good opinions in judicial practice and theoretical discussion, and put forward good methods. The inversion of the burden of proof is a normal burden of proof under general circumstances. When there are special provisions, the burden of proof is inverted. That is, the right burden of proof comes from the fact of creditor's rights, that is, the elements of proving the establishment of rights are borne by the obligee of creditor's rights; When it is inverted, it can only be the proof of some facts, and it is the inversion of the proof of some facts. The draft is not clear enough on this issue.
The second view is that the inversion of burden of proof and what it is can be stipulated in a general way, not necessarily so clear or so detailed, as long as the responsibility for the consequences of inversion can be explained. It is necessary to clearly stipulate that in the fields of tort, contract and medical malpractice, the burden of proof can be reversed and flexible clauses can be added.
The third point of view is that the burden of proof involves the fundamental litigation interests of the parties, and it cannot be vague or vague, so it must be stipulated. In the Supreme Court's Opinions on the Application of the Civil Procedure Law, the provisions on the inversion of the burden of proof are unclear, which does not reflect the basic spirit of the inversion of the burden of proof stipulated by law, resulting in confusion in the application of the burden of proof in practice. Many judges abuse the inversion of the burden of proof in trials, resulting in infringement on the legitimate rights and interests of one party. Therefore, under what circumstances the inversion of burden of proof should be applied, it must be clearly defined. However, it is impossible to make specific provisions for every situation. According to the provisions of the civil law on the inversion of burden of proof, the following matters need to be clearly stipulated: first, in infringement cases where the principle of presumption of fault is applied, the burden of proof is inverted for the proof that overturns the presumption of fault of the actor, and the actor gives evidence; The second is the infringement case of presumption of causality, and the proof of overturning the presumption of causality is borne by the offender; Third, when applying the principle of no-fault liability, the burden of proof is reversed to prove that the damage is caused by the victim's intention or gross negligence, and the offender will give evidence; Fourth, in the contract responsibility, for the fault in the contract responsibility, because the fault in the contract responsibility is fault presumption, the burden of proof is inverted, and the actor's burden of proof overturns the fault presumption; In addition, it is enough to stipulate an elastic clause to summarize the contents of the inversion of burden of proof that are not stipulated in the above clauses.
The fourth view is that the inversion of burden of proof is not the content stipulated by procedural law, but the content stipulated by substantive law. In the world, only Indian, Hungarian and China Taiwan Province Province have stipulated the inversion of burden of proof in procedural law, while other countries have stipulated it in substantive law. Therefore, the inversion of burden of proof should not be stipulated in the evidence law. In this regard, some comrades pointed out in a tit-for-tat manner that the evidence law we have formulated is to make complete provisions on evidence-related issues and make a breakthrough, whether it is substantive law or procedural law. The relevant situation of the inversion of burden of proof is abstracted from the provisions of substantive law, sorted out the provisions and stipulated in the evidence law.
The fifth view is that if the concept of inversion of burden of proof is not clear, it should be directly called the defendant's proof, which is clear and clear. Then specify the defendant's evidence. It must be detailed, not generalized, and easy to operate.
The above-mentioned debate on the legislation of inversion of burden of proof reflects the differences in the legislative orientation of inversion of burden of proof. The legal choice of setting the rules of inversion of burden of proof should follow the law, and the norms of inversion of burden of proof belong to the field of procedural law and related substantive law, rather than pure procedural law norms or substantive law norms. Only by recognizing this, can we realize that the idea of setting the inverted burden of proof intact in the civil evidence law is too idealistic, and strict legalism will inevitably leave loopholes in the setting of the inverted burden of proof. Because the inversion of burden of proof will make it difficult to refer to clear legal provisions to judge a case with the emergence of new types of cases and the lack of existing legal norms, and the legal proverb says, "A judge cannot refuse to judge a case because there is no law." Therefore, in the setting of the legal norm of the inversion of burden of proof, we should implement the basic spirit of supplementing the discretion of the chief judge by law, and at the same time, the discretion gives the judge a certain power to act according to the camera, which is similar to the "equity" in Anglo-American law. As Lord Denning wrote in his book "The Boundary Monument of Law": "Equity is a difficult thing to grasp. For the law, we have a standard and know what to believe. Fairness is consistent with one's conscience. This man is a judge: how wide it is, how narrow it is. Even if they determine the standard of measurement, there is only one, which we call the' judge's foot'. " In order to avoid excessive abuse of discretion by judges, whether case law can be implemented in China is also a question worthy of consideration. Although China's legal tradition and legal system are not case law systems, the application possibility and function of case law are expanding with the development trend of the integration of the two legal systems. Case law is the law of judges. Judges establish legal principles by hearing cases, and precedents become law. Therefore, judges must have high legal quality to engage in case law work. Based on the current quality of judges, it is inappropriate to engage in case law in China. Once the time is ripe, it is not impossible for China to engage in case law. Therefore, in the legal choice of setting the standard of inversion of burden of proof, we can consider the guiding significance of case law and determine the place of case law when the conditions are ripe to make up for the lag and deficiency in legislation. However, under the current legislative situation, the legislative choice of setting the standard of inversion of burden of proof cannot include case law, but can only be based on the clear provisions of the law and the discretion of judges.
The contents of the draft Civil Evidence Law on the inversion of the burden of proof are as follows: Chapter VII: The burden of proof of the parties was drawn up by Li Hao and Tang, specifically Article 240th of the Draft Civil Evidence Law (Inversion of the Burden of Proof): 1. In a patent infringement lawsuit caused by a product manufacturing method invention patent, the defendant shall bear the burden of proof for manufacturing the product without using the plaintiff's patented method. 2. In environmental pollution damage compensation litigation, the defendant should bear the burden of proof that there is no causal relationship between pollution behavior and damage facts. 3. The defendant shall bear the burden of proof and compensation for the infringement lawsuit caused by the collapse, falling off and damage of buildings or other facilities, as well as the shelves and hanging objects on buildings. 4. The defendant shall bear the burden of proof that the product has no causal relationship in the infringement lawsuit that causes personal injury or property damage to others due to product defects; 5. In the tort lawsuit that * * * causes damage to people due to dangerous behavior, the defendant shall bear the burden of proof that there is no causal relationship between his behavior and the damage result. 6. In the lawsuit of damage caused by * * * by dangerous behavior, the defendant shall bear the burden of proof for the absence of causal relationship between medical behavior and damage results and the absence of medical negligence; 7. Relevant laws and judicial interpretations stipulate that the defendant shall bear the burden of proof. It can be seen that the draft civil evidence law does not cover all types of cases with inverted burden of proof, but only lists several typical types in real life, and makes a highly generalized flexible provision with an elastic clause "relevant laws and judicial interpretations stipulate that the defendant shall bear the responsibility". The shortcomings of this draft are obvious. First of all, the connotation of the inversion of the burden of proof, which has been unclear for a long time, has not been clearly analyzed in law, and the ambiguity of the scope of the inversion of the burden of proof is still inevitable. Secondly, judging from the provisions of the draft on the inversion of the burden of proof, it is inevitable that people mistakenly think that the inversion of the burden of proof is only applicable to some special infringement situations, but does not include some breach of contract in the contract field. Third, there is a manifestation of willingness but inability in legislative technology. The drafter wants to list the cases where the burden of proof is reversed, but obviously the list in the draft is not ideal. From the orthodox German inverted burden of proof theory, this clause is neither the embodiment of legal requirements nor the dangerous field theory, but a mixture of the two. Judging from the provisions of the draft on the inversion of burden of proof, the drafters do not want to rely on the provisions in the evidence law to completely summarize the scope of the inversion of burden of proof, but must combine other laws, including substantive law, procedural law and related judicial interpretations to form a complete judicial practice. In addition, this clause is basically the evolution of Article 74 of the Supreme People's Court's Opinions on Several Issues of Civil Procedure Law.
? Second, the legislative principle and conception of the inversion of burden of proof
The legislative perfection of the inversion of burden of proof, like other laws, must follow certain principles and take this principle as the guiding ideology of legislation. From the discussion of the function of inversion of burden of proof, it can be roughly summarized as the following principles that should be followed in the legislation of inversion of burden of proof:
1, the principle of combining procedural law with substantive law; It is precisely because the rule of inversion of burden of proof cannot be purely attributed to substantive law or procedural law that the legislation of inversion of burden of proof should implement the principle of combining procedural law with substantive law. Looking at the judicial practice and legislative experience of various countries, as some experts and scholars in evidence legislation have said, the provision of inversion of burden of proof is more common in substantive law, and only a few countries have provisions in procedural law, which is based on the special legal tradition of our legislation. The inversion of burden of proof can be stipulated in the procedural law in principle and generality. After all, the provisions of procedural law cannot solve all the problems in the process of judge's judgment, and the merits of the case should be found in substantive law. Usually, the provisions on the legal elements of liability in substantive law fundamentally determine the sharing of burden of proof. Therefore, in the legislative process of inversion of burden of proof, we should rationally realize that evidence law cannot solve all the rules of inversion of burden of proof and complete the legislative task of inversion of burden of proof.
2. The principle of fairness; Fairness is the inherent value pursuit of law, and the setting of the inversion rule of burden of proof should also be guided by the principle of fairness. In litigation, the law should protect all parties in a balanced way. Since the promulgation of 199 1 China's revised Civil Procedure Law, the Supreme People's Court has made judicial interpretations on medical damage, traffic accident damage, commodity defect damage, environmental pollution, etc., which are not expressly stipulated in the civil law. When applying the general tort clause to determine the distribution of burden of proof, most of them use the facts of various special circumstances as a method to explain the application of law, so that the injurer can bear the burden of proof for the above-mentioned types of tort damages, as well as the facts of intentional negligence and causality. To a great extent, these changes are aimed at protecting the legitimate rights and interests of victims and ensuring the realization of the goal of legal justice.
3. The principle of litigation economy; The comparison of costs and benefits in litigation will directly or indirectly affect the choice of litigation system. The principle of litigation economy is the rational choice to achieve the expected goal with as little resource expenditure as possible, so that the saved resource expenditure can be used in other fields of the system. The reasonable allocation of the way of proof can achieve the same litigation purpose with less litigation resources and set the burden of proof upside down reasonably. It can make the burden of proof resources be effectively and evenly distributed among the parties, without making one party's burden of proof too heavy, leading to unfair litigation and unreasonably reducing the chances of winning the case. As Lord Denning said, "An unfair judgment is worse than many unfair lawsuits. Because these unjust acts only pollute the water flow and the unjust judgment corrodes the water source "(3), and because the civil procedure law of our country stipulates that the court can also collect evidence on its own (4), the cost for the court to find out the facts of the case is greatly reduced. Judges are not detectives. His main function is not to find out the disputed facts, but to judge the litigation requests and relevant evidence put forward by the parties, which is based on the setting of the burden of proof distribution system, except for the inversion of the burden of proof.
4. The principle of protecting the weak; The principle of protecting the weak should be the proper meaning of setting the inversion rule of burden of proof. In civil litigation, the inversion of burden of proof is largely related to the principle of imputation, and the evolution of the principle of imputation is related to the spirit of protecting the weak. As mentioned above, the distribution rules of burden of proof established in ancient Rome are "the plaintiff should bear the burden of proof" and "the burden of proof lies with the person who advocates it, but not with the person who denies it". Later, with the development of large-scale industry, the probability of victims getting compensation is getting lower and lower. In order to protect these vulnerable groups in society, it is inevitable to establish the inversion of burden of proof, and correspondingly increase the protection of vulnerable victims. Of course, from a global perspective, the inversion of burden of proof is a specific phenomenon under the classification of legal elements, which has its limitations, but protecting the weak is the basic spirit and principle that cannot be ignored in the distribution system of burden of proof.
In the process of setting the inversion of burden of proof, in addition to the above principles, other principles should be followed. For example, in the absence of explicit provisions in the law, the judge should set the inversion of burden of proof according to the principle of good faith, and refer to the principle of probability, the theory of danger zone and the rule of experience in legislation to improve the shortcomings and defects of inversion of burden of proof in legislation and judicial practice. Based on the above principles, in the specific legislative process (not only the civil evidence law), the distance of proof, the difficulty of proof and whether it is conducive to the prevention and relief of damage are the basic ideas of the application scope of inversion of burden of proof. It can be seen from the provisions on the inversion of burden of proof in the draft civil evidence law that the more operational and instructive judicial interpretation summarized from judicial practice in the draft has also been included in the scope of determining the legal norms of inversion of burden of proof. In order to enhance the flexibility of applying the rule of inversion of burden of proof, this choice should be guided by the principle of good faith, because inversion of burden of proof will directly affect the outcome of the case to a considerable extent, which is a crucial issue for the parties. Judicial interpretation should not go beyond the basic position and direction determined by substantive law and procedural law. Only when legislation is missing, judicial interpretation can supplement the missing part according to the basic principles of legal interpretation. And it must not violate the spirit of legislation, and the setting of the inversion rule of burden of proof should also follow these restrictions. Judging from many legislative examples, I think the improvement of the inverted burden of proof rule exists in the following aspects:
First of all, the legislation clearly defines the inversion of burden of proof and endows it with legal connotation and significance. The main purpose of this move is to determine the division, stop the dispute and avoid endless entanglement on whether it should be called "inversion".
Secondly, the common cases of inversion of burden of proof are summarized in the civil evidence law, and the flexibility of inversion of burden of proof in the process of social development and the immediacy of legal relief are enhanced through the application of legislative techniques, because the types of cases to which inversion of burden of proof applies are far from those listed in the civil evidence law. With the changes of social life, more new cases will inevitably appear.
Third, we should pay full attention to the setting of the inversion rule of burden of proof in the process of substantive law legislation. After all, the provisions on the burden of proof in procedural law are usually relatively principled, and all countries in the world have provisions on the burden of proof in substantive law, such as/kloc-the Napoleonic Code, the German Civil Code and the Uniform Commercial Code of the United States at the beginning of the 9th century. Although many provisions of General Principles of Civil Law in China are relatively principled, they still pay attention to the distribution of burden of proof, mainly focusing on the exception of inversion of burden of proof. For example, Article 123 of the General Principles of the Civil Law stipulates: "Those who engage in operations that are highly dangerous to the surrounding environment such as high altitude, high pressure, inflammable, explosive, highly toxic, radioactive and high-speed means of transport shall bear civil liability; If it can be proved that the damage was intentionally caused by the victim, it will not bear civil liability. " In addition, the Patent Law, Maritime Law and Contract Law all have some provisions on the distribution of burden of proof, and the contents of these substantive laws cannot be comprehensively stipulated in the procedural law, so the provisions on the inversion of burden of proof also depend on the substantive law. Therefore, some scholars in our country (such as Bi) argue that the determination of the inversion of burden of proof should not be stipulated in detail in the law, but should give judges some free loading rights.
Finally, in the absence of explicit provisions in the law, the inversion of the burden of proof can reasonably allocate the burden of proof resources among the parties according to the difficulty of proof, the distance of evidence or whether it is conducive to the prevention and relief of damage, and can properly establish the guiding position of precedent and make up for the lag of the current law. For example, China has not yet enacted a press law, and a very obvious difficulty in news infringement cases is the burden of proof. According to the libel law of Hong Kong and Taiwan, the burden of proof has been stipulated in the substantive law: the authenticity of news should be proved by the defendant, and if it cannot be proved, it should bear adverse legal consequences. As the Mainland News Tort Law lists the falsehood and inaccuracy of news as the constitutive elements of libel or infringement in the substantive law, according to the corresponding procedural law principles, the plaintiff has the responsibility to prove that the falsehood and inaccuracy of news constitute libel or infringement of the right of reputation. If it cannot be proved to be false or inaccurate, it cannot be regarded as libel or infringement. However, there is a strong controversy in both academic and practice. Academically, Professor Jia Ankun, a senior reporter in Shanghai, believes that in news infringement litigation, it should be handled in strict accordance with the general principle of proof in civil procedure law, that is, the plaintiff gives evidence. In some places, the practice of "who reports, who gives evidence" is groundless. In some eyewitness news reports, it is difficult or even impossible for journalists to give evidence. Justice Li Dayuan, on the other hand, clearly advocated that the burden of proof should be reversed when the news is untrue, that is, the defendant should fulfill the responsibility of proving the truth of the news, otherwise the defendant will bear adverse legal consequences. The reason is also very real, because the plaintiff can't prove that a fact doesn't exist, so he loses the possibility of protecting his reputation. In practice, the Beijing Higher People's Court stipulates that if a newspaper is sued for infringement of the right of reputation, the plaintiff must provide evidence and file a case after examination. The Shanghai Higher People's Court stipulates that the prosecution of infringement of the right of reputation should provide evidence that the contents published in the infringing newspaper are not true. There are also cases where the plaintiff's evidence is not enough to overturn the news facts and the plaintiff loses the case. But more often, news media or authors are required to fulfill the responsibility of proving the authenticity of news. If there is a news that a tax administrator extorts a vendor, the court will rule that the reporter loses the case, on the grounds that the interview notes and recordings provided by the reporter cannot be used as evidence, so it cannot prove the truth of the news. How to correct the contradiction between substantive law and procedural law and how to solve the burden of proof of both parties in litigation is also an urgent problem in theory and practice. However, because China is not a country that recognizes case law, the guiding significance of case law in China's judicial practice is not so legitimate. Nevertheless, in order to ensure the authority of the court and the realization of the law, the consistency of court decisions is in the absence of explicit provisions in the law. We can still consider the significance of precedent in judicial practice. For example, in the case of news infringement mentioned above, we can make up for the lack of legal provisions through precedents in the course of litigation, and clearly analyze the burden of proof of the litigants. Of course, the role of precedent remains to be discussed.
References:
(1) "On the Application of Case Law" Liu Jing, edited by National Judges College, contains "Application of Law" No.4 in 2000, which is a complicated dispute and disagreement.
(2) Ye Ziqiang's Research on Civil Evidence, Law Press, 1st edition 1999, p. 169.
(3) The Boundary Monument of Law by Lord Tannin. ?
(4) Paragraph 2 of Article 64 of the Civil Procedure Law of People's Republic of China (PRC): "The people's court shall investigate and collect the evidence that the parties and their agents ad litem need, the evidence that cannot be collected by themselves due to objective reasons, or the evidence that the people's court considers necessary for the trial of a case."
⑤ Study on Case Practice of Civil Evidence Law, Law Press, 1st edition, 1999, p. 489.
⑥ Ye Ziqiang's Research on Civil Evidence, p. 179, first edition of Law Press 1999.
7. Finish the Case Study of Civil Evidence Law, page 5 10.
(8) See Wei Yongzheng's Comparison between the Development of Mainland China's Press Tort Law and the Defamation Law of Hong Kong and Taiwan.