In the process of civil litigation, the production and cross-examination of evidence is the most active and critical litigation activity.
1. Basic Principles - Whoever asserts shall provide evidence. The basic principle of distribution of the burden of proof is "whoever asserts shall provide evidence." Under this principle, the party claiming that a fact is established bears the burden of proof for the fact it claims. When the truth of the fact is legally unknown, it shall bear the adverse consequences. The parties concerned are responsible for providing evidence to prove the facts on which their own claims are based or the facts on which they refute the other party's claims. For example, in a commodity sales contract, the seller bears the burden of proof that the contract has been established and that he has delivered the goods, and the buyer bears the burden of proof that he has paid the price for the goods on time and in full. After the seller provides evidence, the buyer will cross-examine it and even present some evidentiary materials to refute the other party's claims. At the hearing, the seller produced a bill of sale for the goods that had been delivered. The buyer will ask the seller to produce the original bill of sale and check carefully whether it has the buyer's signature and seal, and whether the signature and seal are authentic, etc. After the buyer presents the corresponding evidence that he has paid the price in full and on time, the seller will cross-examine it to see whether it is the original, whether the payer is the buyer, and whether the payee is the seller, etc. Legal basis: "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures" (hereinafter referred to as "Civil Evidence Provisions") Article 2: The parties concerned are responsible for the facts on which their own claims are based or the facts on which they refute the other party's claims. Provide evidence to prove it. If there is no evidence or the evidence is insufficient to prove the factual claims of the parties, the party who bears the burden of proof shall bear the adverse consequences. "Civil Evidence Provisions" Article 2, Paragraph 1: The parties concerned are responsible for providing evidence to prove the facts on which their own claims are based or the facts on which they refute the other party's claims. "The Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (hereinafter referred to as the "Civil Procedure Interpretation") Article 90, Paragraph 1, the facts or rebuttals on which the parties base their claims The facts on which the other party's claims are based must be supported by evidence, unless otherwise provided by law. "Interpretation of Civil Procedures" Article 91 The people's court shall determine the burden of proof in accordance with the following principles, unless otherwise provided by law: (1) The party claiming the existence of a legal relationship shall understand the basic facts that gave rise to the legal relationship. Bear the burden of proof; (2) The party claiming that the legal relationship is changed or eliminated or the rights are obstructed shall bear the burden of proving the basic facts of the change, elimination of the legal relationship or the obstruction of the rights.
2. Principle of Statutory Exception - Principle of Inversion of the Burden of Proof Some special types of tort litigation implement the allocation of burden of proof based on the principle of reversal of the burden of proof.
"Civil Evidence Provisions" Article 4 The burden of proof for the following infringement lawsuits shall be borne in accordance with the following provisions: (1) For patent infringement lawsuits arising from invention patents for new product manufacturing methods, the unit or individual that manufactures the same product shall have a different product manufacturing method than Patented methods bear the burden of proof; (2) In infringement litigation involving damage caused by highly dangerous operations, the infringer shall bear the burden of proof for the fact that the victim intentionally caused damage; (3) In litigation for damages caused by environmental pollution, the infringer shall bear the burden of proof. The person shall bear the burden of proof for the reasons for exemption specified in the law and that there is no causal relationship between the act and the result of the damage; (4) The tort of causing damage to persons due to the collapse, falling off or falling of buildings or other facilities, as well as objects placed or suspended on the building In a lawsuit, the owner or manager shall bear the burden of proof that the owner or manager is not at fault; (5) In a tort lawsuit where raising an animal causes harm to a person, the owner or manager of the animal shall bear the burden of proof that the victim is at fault or that a third party is at fault; (6) In a tort lawsuit involving personal injury caused by a defective product, the producer of the product shall bear the burden of proof for the reasons for exemption specified in the law; (7) In a tort lawsuit involving personal injury caused by a similar dangerous act, the manufacturer of the product shall bear the burden of proof against the person who committed the dangerous act. The person bears the burden of proof that there is no causal relationship between his or her behavior and the damage result; (8) In a tort lawsuit caused by medical behavior, the medical institution shall bear the burden of proof that there is no causal relationship between the medical behavior and the damage result and that there is no medical fault. responsibility. If relevant laws have special provisions on the burden of proof in infringement litigation, those provisions shall prevail.
3. Evidence-free facts 1. Self-admission by the parties: During the trial process, the other party can be cleverly made to admit themselves, thereby reducing the task of one's own party in providing evidence. (Summary of my experience and lessons learned) "Civil Litigation Interpretation" Article 92 If a party expressly acknowledges unfavorable facts during the court trial or in written materials such as the complaint, defense, or representation, the other party shall One party does not need to provide evidence to prove it. For facts involving identity relationships, national interests, social public interests, etc. that should be investigated by the People's Court ex officio, the self-recognition provisions in the preceding paragraph shall not apply. If the self-admitted facts are inconsistent with the ascertained facts, the people's court will not confirm them. 2. No evidence is required for facts that can be deduced from common sense and life experience rules. Article 93 of the Civil Procedure Interpretation stipulates that parties do not need to provide evidence to prove the following facts: 1. Natural laws, theorems, and laws; 2. Well-known facts; 3. Facts presumed according to legal provisions; 4. Based on known facts Facts and another fact deduced from the rules of daily life; 5. Facts that have been confirmed by a legally effective judgment of the People's Court; (6. Facts that have been confirmed by an effective award of an arbitration institution; 7. A valid notarized document Proven facts. The facts stipulated in items 2 to 4 of the preceding paragraph shall be excepted if the parties have contrary evidence that is sufficient to refute them; the facts stipulated in items 5 to 7 shall be excepted if the parties have contrary evidence that is sufficient to refute them.
4. Judges’ discretion in allocating the burden of proof. Article 6 of the "Civil Evidence Provisions" When there are no specific provisions in the law and the burden of proof cannot be determined in accordance with these provisions and other judicial interpretations, the People's Court may, based on the principles of fairness and honesty, The principle of credibility determines the burden of proof based on factors such as the party's ability to produce evidence. Accordingly, if a fact is not exempt from proof and the burden of proof cannot be determined based on the general principles and special principles of distribution of the burden of proof, the judge shall determine the burden of proof based on the special circumstances of the case. circumstances, based on the principles of fairness and good faith, combined with the parties' ability to produce evidence and other factors to determine the burden of proof in a fair and reasonable manner. At this time, the judge may determine that the plaintiff shall bear the burden of proof based on the specific circumstances. , it can also be determined that the defendant shall bear the burden of proof. In practice, the judge generally determines that the burden of proof shall be borne by the defendant.