The inversion of burden of proof is a concept in continental law system. In Anglo-American law, the distribution of burden of proof is decided on a case-by-case basis, rather than the general principle of burden of proof distribution, so the homework principle-inversion of burden of proof is no exception. As early as 1950s and 1960s, German scholars put forward the theory of inversion of burden of proof in order to correct the defects of the classification theory of legal elements. The reason why the theory of inversion of burden of proof is put forward at this time is that with the development of social modern economy, some new tort litigation cases have appeared, such as public hazards, product liability, medical accidents and so on. If the distribution of burden of proof in these new tort litigation cases still adheres to the classification theory of legal elements, it will inevitably be unfair to the plaintiff and actually deny the victim's right to judicial relief in such tort litigation disputes. As a result, Rosenberg's "classification of legal requirements" invented in the early 20th century hindered its application in the new era and new demands, and encountered unprecedented challenges. In order to overcome this drawback, the academic circles put forward a revised classification theory of legal elements, that is, the so-called inversion of burden of proof.
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. Since ancient Roman law, there have been three norms for the distribution of burden of proof in methodology: 1. The attribution of burden of proof is determined by the status of the parties in the litigation, which stipulates that "the plaintiff bears the burden of proof, and the defendant does not bear the burden of proof; However, if the defendant puts forward positive defense facts, he becomes the plaintiff. " 2. The attribution of the burden of proof is determined by the nature of the facts of the case itself. It is believed that "the parties who advocate positive facts or external facts bear the burden of proof, and the parties who advocate negative facts or internal facts do not bear the burden of proof". 3. Taking the legal effect of substantive facts as the standard, the author thinks that "the party claiming rights should bear the burden of proof for the substantive facts of the norms of rights occurrence, otherwise, the party claiming rights should bear the burden of proof for the substantive facts of the norms of rights obstruction, rights restriction and rights elimination." This is the "classification theory of legal elements" that has been popular in civil law countries mentioned above. Historically, the inversion of burden of proof is based on the theory of legal elements, which is the principle, with the exception of inversion of burden of proof.
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 infringement cases, if the plaintiff's claim for damages is satisfied by the court's judgment, the following four elements must be claimed and proved at the same time: 1, the defendant has 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. However, if the lawsuit filed by the plaintiff is a special infringement case, the elements and facts that the plaintiff needs to prove can be appropriately reduced, and some elements and facts that should have been proved by the plaintiff can be pushed back to the defendant. However, no matter how special the infringement case is, it is impossible for legislators to stipulate that all elements and facts should be turned to the defendant. According to the principle of inversion of burden of proof, the inverted facts can only be part of the elements system of infringement cases. For example, in the case of construction liability accident, the inversion according to the principle of inversion of burden of proof is only the subjective fault of the defendant. The plaintiff does not need to prove that the defendant is subjectively at fault when committing the infringement. On the contrary, the defendant should prove that he has no subjective fault. Of course, how many factual elements are inverted and which factual elements are inverted have different manifestations in different infringement cases, which are generally defined by legislators in legislation and determined by judges according to the principle of fairness and reasonableness in special circumstances. Article 74 of the Opinions of the Supreme Court on the Application of the Civil Procedure Law stipulates: "In the following tort litigation, the defendant shall bear the burden of proof for the facts denied by the plaintiff." Accordingly, the plaintiff's infringement facts usually include the above four elements, and the defendant denies these four elements, and the burden of proof is reversed. 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. 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. In fact, in civil litigation, both the defendant and the plaintiff bear their own burden of proof according to certain standards. For example, in general tort cases, the plaintiff should prove the necessary facts that constitute tort liability, and the defendant should prove the exemption facts such as force majeure, legal authorization and emergency avoidance. The burden of proof of these matters borne by the defendant is allocated according to the general principle of burden of proof, not borne by the plaintiff. In other words, this inversion is actually only formal. Still have to conform to the general principle of burden of proof distribution.
Article 74 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) stipulates that in litigation, the parties have the responsibility to provide evidence of their own claims. However, in the next infringement lawsuit, if the defendant denies the infringement facts put forward by the plaintiff, the defendant shall bear the burden of proof. These tort lawsuits include:
(1) Patent litigation caused by the invention patent of product manufacturing method;
(2) Infringement proceedings for damages caused by highly dangerous operations;
(3) Litigation for compensation for environmental pollution damage;
(four) the building or other facilities, as well as the shelving of the building, the collapse of the hanging objects, and the infringement proceedings that cause damage to people;
(5) Infringement proceedings for damage caused by raising animals;
(6) Cases in which the defendant bears the burden of proof according to relevant laws.
Whether it is judicial interpretation or domestic theoretical interpretation, this provision is regarded as the inversion of the burden of proof.
Applicability: (1) Tort litigation with presumption of fault. Such as buildings or other facilities, as well as shelving and hanging objects on buildings, which collapse and fall off and cause damage to people; Litigation caused by medical disputes. (2) Tort litigation based on presumption of causality. Infringement litigation such as environmental pollution; Infringement litigation in which unqualified products cause damage to people. (3) Litigation in which it is difficult to collect evidence and proof. Such as patent infringement litigation caused by product manufacturing methods and invention patents, and infringement litigation caused by dangerous behaviors. (4) Litigation in which the other party obstructs the proof. From the above analysis, it can be seen that the inversion of burden of proof does not apply to the tort litigation of damage caused by highly dangerous operations and the tort litigation of damage caused by raising animals. 1. Patent infringement lawsuit caused by invention patent of new product manufacturing method. Units or individuals that manufacture the same product shall bear the burden of proof that the manufacturing method of their products is different from the patented method; 2. In an infringement lawsuit that causes damage by highly dangerous operations, the injurer shall bear the burden of proof for the fact that the victim intentionally causes damage; 3. In the lawsuit of compensation for environmental pollution damage, 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 his behavior and the damage result; 4. The owner or manager shall bear the burden of proof for the tort lawsuit that the building or other facilities, as well as the shelving and hanging objects on the building collapse, fall off or cause damage. 5. In an infringement lawsuit that causes damage to people 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 lawsuit 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 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; 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. Article 123 of China's General Principles of Civil Law stipulates: "Those who engage in high-altitude, high-pressure, inflammable, explosive, highly toxic, radioactive and high-speed means of transport that are highly dangerous to the surrounding environment and cause damage to others shall bear civil liability; If it can be proved that the damage was intentionally caused by the victim, it will not bear civil liability. " The principle of no-fault applies to the damage caused by highly dangerous operations, and the plaintiff also needs to prove the damage facts, behaviors and causality. There is no object with inverted burden of proof. The defendant proves that the exemption condition is the result of who advocates and who gives evidence. The principle of no-fault is also applicable to the damage caused by raising animals. The plaintiff needs to prove the damage facts, causality and that the animals causing the damage were raised or managed by the defendant. There is also no object with inverted burden of proof. The exemption condition of the defendant's proof is also the result of who advocates who gives evidence, rather than the embodiment of the inversion of the burden of proof. In addition, not only civil cases, but also criminal cases are the inversion of the burden of proof. For example, the defendant needs to prove the legitimacy of the source of huge property with unknown sources. China's "Regulations on Work-related Injury Insurance" stipulates that the burden of proof is reversed: Article 19 After accepting the application for work-related injury identification, the administrative department of labor security may investigate and verify the accident injury according to the needs of examination, and the employer, employees, trade unions, medical institutions and relevant departments shall provide assistance. The diagnosis of occupational diseases and the identification of diagnostic disputes shall be carried out in accordance with the relevant provisions of the Law on the Prevention and Control of Occupational Diseases. The administrative department of labor security will no longer investigate and verify the personnel who have obtained the occupational disease diagnosis certificate or occupational disease diagnosis and appraisal certificate according to law. If the employee or his immediate family members think it is a work-related injury and the employer does not think it is a work-related injury, the employer shall bear the burden of proof. In China, there are mainly two kinds of inversion of burden of proof in civil litigation: one is inversion of burden of proof in special tort litigation, which mainly stipulates that in Article 4 of the Supreme People's Court's Provisions on Evidence in Civil Litigation, 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, a 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. (But according to the Tort Liability Law, the burden of proof should be borne by the patient now. If the relevant laws have special provisions on the burden of proof in tort litigation, those provisions shall prevail. Second, the burden of proof in labor dispute cases is reversed. According to Article 6 of "Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings", in a labor dispute case, if a labor dispute occurs due to the decision of the employer to dismiss, remove from the list, expel, terminate the labor contract, reduce the labor remuneration, and calculate the working years of the laborer, the employer shall bear the burden of proof.