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The Research into the Allocation of the Burden of Proof in the Civil Procedure. Summary of Contents

Author: XuJingRan
Tutor: YangXiuQing
School: China University of Political Science
Course: Procedural Law
Keywords: Allocation of the burden of proof Model of the allocation of the burden of proof Improvement
CLC: D915.2
Type: Master's thesis
Year: 2008
Downloads: 338
Quote: 2
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Abstract

The burden of proof refers to the onus that the party has to bear during the civil proceedings,in order to prevail in the case and to avoid losing the case,producing the evidence to prove the fact of the pleading.when the party beating the burden of proof has proved the allegation of the fact,the party wins;when the party has no euidence or obviousli lack the evidence or the judge views the evidence as precisely in equipoise,the party lose.The allocation of the burden of proof is that the judge imposes the burdens between the parties during the whole proceedings from the beginning to the end,including the procedural burden of proof and the substantive burden of proof,the procedural burden of proof is allocated by the court during the proceedings,especially dealing with going forward with the evidence,the substantive burden of proof is decided by the judge at the end of the trial,including the results of the winning and losing.The allocation of the burden of proof in u.s.civil procedure represents the first model.according to this model,pleading and affirmative defense are the cornerstone on.the allocation of the burden of proof in u.s.,and generally the moving party has the burden of proof,but there are many exceptions.At the case law,Many factors may determine the allocation of the burden of proof,for example,the defense being disfavoured,fairness,policy,distance to the evidence,probabilities,pleading exceptions etc.The allocation of the burden of proof in U.K.is thought as the second model like U.S.,also using the definition of affirmative defense and appalying the doctrine of the moving party having the burden of proof. But the construction of the clause in the contract,statutory provisions,ability of producing the evidence,fairness,distance to the evidence may result in the result of the allocation of the burden of proof.Of coure The allocation of the burden of proof in GERMANY is considered as the third model,mainly using the classification into the civil provisions to allocate the burden of proof.But sphere’obligation’ theory, evidence’distance’ theoryand controlling’ sphere’theory and danger’sphere’theory are used to be of suplemental function.In the civil procedure inU.S.,U.K.and GERMANY,the constitution of the burden of proof is alike,the factors to be used to decide the burden of proof,are fundementally same,but the different is that affirmative defense is defined and invented in U.S.andU.K.In fact the doctrine of the allocation of the burden of proof resembles wholy.In CHINA,generally the moving party has the burden of proof,but except as the law otherwise provides,fairness,and the distance to evidence also function.We should clearly define the pleading and affirmative defense.At the outcome burden of proof,We should provide how this circumstance that the evidence is viewed as precisely in equipoise reaches the burden of proof.We should establish unilateral factors to distribute the burden of proof.Improve the constitution of the onus Of burden.Further enhance the judicial notice,confession and presumption.

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CLC: > Political, legal > Legal > UNIVERSITY > Procedural Law > Civil Procedure Law
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