Abstract: The distribution of burden of proof has always been regarded as the core content of civil procedure law, and the understanding of the dual connotation of burden of proof in China has also gone through a relatively long time. A comprehensive understanding of the burden of proof in legislation began with the promulgation and implementation of Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings. The Rules of Evidence makes clear and specific provisions on the distribution of the burden of proof in China's civil litigation, which not only establishes the general principle of the distribution of the burden of proof, but also clarifies the exception to the distribution principle, that is, the inversion of the burden of proof; At the same time, as a supplement to the above two types of provisions, judges are given the right to exercise discretion to allocate the burden of proof according to the specific circumstances of each case in the absence of explicit provisions in the law.

Key words: burden of proof, consequence responsibility, behavioral responsibility, normative theory, inversion of burden of proof.

Before discussing the text of this article, it is necessary to clarify the concept of burden of proof and explain in what sense the burden of proof is used to avoid unnecessary ambiguity and misunderstanding. Up to now, the civil burden of proof has always been a rich concept, which includes both the burden of proof in the sense of behavior and the burden of proof in the sense of result. The so-called behavioral burden of proof is called subjective burden of proof in the civil law system, which means that the parties have the responsibility to provide evidence to prove their claims, also known as behavioral responsibility and burden of proof. The burden of proof in the sense of result is called the objective burden of proof in the civil law system, which refers to the adverse litigation consequences borne by the parties who claim the facts when the facts are unknown, and is also called the responsibility of result and the burden of proof. Behavioral responsibility is consistent with the actual process of civil litigation, and the burden of proof is observed and analyzed from the perspective of the parties' evidence-giving activities, which dynamically reflects the litigation content of the burden of proof. In civil litigation, as long as the parties make certain claims and the facts claimed are not exempted from evidence, they must provide evidence for the facts claimed. Therefore, behavioral responsibility is external, superficial and can be perceived by people. The responsibility of result statically reflects the content of the burden of proof. The elements that the original defendant and the defendant should claim in the lawsuit are stipulated in advance by law and arranged before the lawsuit begins, and are not affected by the actual process of the lawsuit. Although the concept of burden of proof in the result sense originated from the civil law countries dominated by the debating litigation mode, the burden of proof in the result sense is not necessarily related to the litigation mode because the litigation facts in the ex officio investigation litigation mode are unknown. In any civil litigation, no matter whether the parties provide evidence, whether the evidence provided is sufficient or not, whether the court actively investigates and collects evidence, as long as the truth of the case is unclear, the court needs to make a judgment based on the burden of proof and allocate the adverse legal consequences arising therefrom to the party with the burden of proof. Behavior responsibility and result responsibility are indispensable components in the concept of burden of proof, and there are relationships between them, such as external and internal, form and content, procedure and entity, dynamic and static. "The possibility of bearing the burden of proof in the sense of result is the reason why the parties must fulfill the burden of proof in the sense of behavior", so only the responsibility of result can truly reflect the essence and significance of the concept of burden of proof.

Civil litigation system is a legal dispute resolution system established by the state as compensation to prohibit people from using self-help to solve disputes. Therefore, judges are obliged to make judgments on various disputes. Even if the facts of the case cannot be ascertained and the truth is unknown for various reasons, judges cannot refuse to make judgments. In this case, in modern civil litigation, the judge must make a judgment with the help of the standard of burden of proof, so there is a legal proverb that "burden of proof is the backbone of litigation", and vivid legal proverbs show the importance of burden of proof. The burden of proof is not only reflected in every lawsuit and affects the outcome of the lawsuit, but also guides people's behavior before the lawsuit begins.

For a long time, because the theory of civil procedure law in China is deeply influenced by the relevant theories of the former Soviet Union, the understanding of the burden of proof, especially the burden of proof in the sense of result, has gone through a process from shallow to deep, even from scratch. The concept of burden of proof in the theory of civil procedure in the former Soviet Union does not recognize the existence of consequential responsibility, but is limited to the responsibility of providing evidence, that is, behavioral responsibility. After accepting this theory, China has not made any breakthrough in the burden of proof. In addition, due to the long-term interference and interference from various non-academic factors after the founding of the People's Republic of China, this research has also become a theoretical forbidden area. It was not until the promulgation of 1982 Civil Procedure Law (Trial) that the research on burden of proof began to attract the attention of theoretical and practical circles. However, due to the emphasis on the pursuit of absolute truth in litigation epistemology, the denial of the existence of the phenomenon of unclear authenticity in litigation, the insistence on the litigation mode explored by authoritarianism in the litigation system, and the emphasis on the leading role of the court in civil litigation procedures, under such conditions, even the necessity for the parties to provide evidence is greatly weakened, and the burden of proof in the sense of result is even more out of the question.

As a concentrated expression of the above-mentioned legislative guiding ideology, Article 56 of the Civil Procedure Law (Trial) stipulates that "the parties have the responsibility to provide evidence for their own claims" and also stipulates that "the people's courts shall collect and investigate evidence comprehensively and objectively in accordance with legal procedures". Article 64 of the new Civil Procedure Law promulgated by 199 1 basically follows the purpose of Article 56 of the Civil Procedure Law (for Trial Implementation), but only makes some restrictive provisions on the scope and conditions for the court to collect investigation evidence. Although this article partly transfers the behavior that the court used to be responsible for all evidence collection and investigation to the parties, which reduces the workload of the court, it also emphasizes the relationship between the parties' behavior of providing evidence and the responsibility of losing the case to a certain extent. However, the new "People's Procedure Law" does not make any provisions on the responsibility for the result, which, like the trial of the Civil Procedure Law, excludes the setting of the responsibility for the result from the legal provisions.

It is generally believed that 199 1 Article 64 of the Civil Procedure Law 1 stipulates that "the parties have the responsibility to provide evidence for their claims", that is, "whoever claims, gives evidence", is the basic principle of burden of proof distribution in China. The author believes that there are theoretical and logical defects in confirming this clause as the basic principle of burden of proof distribution in China. First of all, the content of this clause only involves part of the burden of proof, and does not touch the essential connotation of the burden of proof-the responsibility of result. Secondly, the clause stipulates that the abstract "claim" is the standard for allocating the burden of proof, rather than the factual nature or category of the parties' claims, which violates a basic litigation rule: that is, the parties are never allowed to bear the burden of proof from both positive and negative aspects of the same thing. Therefore, this provision lacks logicality and guidance for trial practice and cannot stand the test of theory and practice.

It should be said that the comprehensive understanding of the burden of proof in legislation began with the promulgation and implementation of Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (hereinafter referred to as the Rules of Evidence). The Rules of Evidence makes clear and specific provisions on the distribution of the burden of proof in China's civil litigation, which not only establishes the general principle of the distribution of the burden of proof, but also clarifies the exception to the distribution principle, that is, the inversion of the burden of proof; At the same time, as a supplement to the above two types of provisions, in the absence of explicit provisions in the law, judges are given the right to freely allocate the burden of proof according to the specific circumstances of each case.

First of all, Article 2 of the Rules of Evidence establishes the general principle of allocating the burden of proof according to the classification of legal elements in China.

Article 2 of the Rules of Evidence stipulates that the parties have the responsibility to provide evidence to prove the facts on which their claims are based or to refute the facts of the other party's claims. 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.

The classification theory of legal elements, also known as normative theory, is a theory of burden of proof distribution put forward by German litigation genius Rosenback. Normative theory advocates the classification of legal elements as the starting point, based on the expressive and structural standards of legal provisions, and mainly analyzes the principles and exceptions of legal provisions and the relationship between basic provisions and opposition provisions. Rosenback believes that there is only one principle to allocate the burden of proof, that is, "a party who cannot obtain the effectiveness of a lawsuit without applying a certain legal provision shall bear the responsibility of claiming and proving the existence of the facts of the constituent elements stipulated in the law". Norm theory divides civil entity norms into two categories according to the relationship of opposites: first, the norms of the occurrence of rights, also known as basic norms and claims norms, refer to legal norms that can produce certain rights. The second is the opposite norm. Rosenback divides the opposite norm into three types: one is the norm of power obstruction, that is, the legal norm that prevents the right from taking effect at the beginning of the right occurrence, so that the right cannot occur. The second is the norm of right extinction, which refers to the legal norm that can make the existing right disappear after the right occurs. The third is the norm of right restriction, that is, the legal norm that can contain and exclude the effectiveness of the right after the right occurs and when it is ready to be exercised, so that the right cannot be realized. On the basis of the classification of the above four legal norms, Rosenback put forward his own principle of burden of proof distribution, that is, "the party claiming the existence of rights should bear the burden of proof for the fact that the legal elements of rights exist; The party who denies the existence of the right shall bear the burden of proof for the fact that the legal elements that hinder the right, eliminate the right or restrict the right exist. " The philosophical thought embodied in the normative theory is: based on the complexity of the factual process and the complexity of the legal norm system reflecting real life, we must adhere to the belief that we must trust the correctness and rationality of the given status quo in social life. If it is against the correctness and rationality of reality, it is necessary to prove the opposite of reality, which is manifested in litigation, that is, to bear the burden of proof. At the same time, from the perspective of substantive law, the normative theory is consistent with the attacker principle, which has the functions of protecting possession, protecting the stability of rights and prohibiting private relief. The distribution of the burden of proof to the parties in the normative theory realizes the basic principles of equality of litigation weapons, risk sharing and opportunity, and at the same time prevents the danger of repeated litigation and obstruction of justice. Because this rule conforms to the idea that everyone should be responsible for his own actions, and this spirit of self-responsibility is essential for the exchange of rights. It conforms to the purpose of substantive law and litigation, has the functions of litigation deterrence and litigation prevention, and embodies the idea of proof approaching, protecting the means of proof and avoiding negative proof.

The normative theory came into being in Germany at the beginning of the 20th century, and has been regarded as the general theory of burden of proof since it came into being. Although the critical theory of normative theory has been put forward continuously, so far, there is no relevant theory to replace it. In this sense, normative theory has been tested by practice for a long time and belongs to the same heritage of human legal culture. China's legal system is deeply influenced by the tradition of continental law system. Therefore, there is no substantial obstacle to establish the basic principle of burden of proof distribution in China by drawing lessons from the theory of absorption norms. As a written law country, the established legal order and legislative model make it impossible for legislators to clearly share the burden of proof for the application of law in every provision of written law, which is neither in line with the traditional expression of written law nor feasible. At the same time, because the litigation in written law countries is legal litigation, it pays attention to the unity of judgment, the stability and predictability of law, so it is of great theoretical and practical value to determine a basic principle of burden of proof. The Rules of Evidence draws lessons from the practice of other civil law countries and the general theory of academic circles, and establishes the basic principle of burden of proof distribution in Article 2 according to the normative theory. Article 2 includes two aspects, one is who provides evidence to prove the facts of the case, and the other is who will bear the consequences of adverse litigation if no evidence can be provided to prove the facts of the case. Reflected in the trial practice, when the facts to be proved advocated by the parties are unknown and both parties can't prove them, the judge can classify the facts to be proved accordingly, so as to determine the party that should bear the burden of proof, make corresponding decisions according to the effect of the performance of the burden of proof, and award the result of losing the case to the party that has an adverse impact after the distribution of the burden of proof.

Two. Exceptions to the distribution of burden of proof

As a general theory of burden of proof distribution, normative theory has lasted for decades, and its leading position is unshakable. However, as a product of modern civil law, this theory inevitably has the disadvantages of conceptual law. First of all, standardize the statutory law of the country, classify and determine the distribution standard of burden of proof in the form of legal provisions, and exclude customary law and precedent; Secondly, the normative theory emphasizes the logical self-sufficiency of the legal system, and holds that all cases in social life can be solved by logical methods from the civil code, and does not admit that there are loopholes in the law; Thirdly, in the interpretation of civil law, normative theory pays attention to the operation of formal logic, emphasizes literal interpretation and systematic interpretation, and excludes judges' measurement of specific cases; Finally, the normative theory denies the dynamic role of judges, regards judges as machines for applying laws, and can only operate the laws formulated by legislators in a syllogism way. In case of doubt, it is emphasized to explore the meaning of legislators.

In order to correct the disadvantages of normative theory, some new theories of burden of proof distribution appeared in the twentieth century. Among them, there are representative theories such as danger field theory, damage attribution theory and probability theory. These theories are all put forward under the banner of free legal movement, which is a variant of the theory of free legal movement in the distribution system of burden of proof. The similarity of these new theories lies in that in view of the social problems brought about by the rapid economic development and great technological progress in modern society, especially since the Second World War, a series of substantive basis for the distribution of burden of proof are put forward from the perspective of maintaining the appropriateness of law. For example, in the dangerous field, the theory holds that in a certain field of civil litigation, the dangerous field should be used as the standard for allocating the burden of proof to correct the lack of norms. The so-called dangerous field refers to the life field that the injuring party can actually control according to the law or factual method.

Since the founding of New China, especially in the past 20 years of reform and opening up, China's legal system has made great progress, absorbing and drawing lessons from foreign advanced legislative experience, and establishing a relatively perfect legal system. However, China's civil substantive law is used to making rough and general provisions on legal norms, that is, the facts of legal elements. Compared with Germany, Japan and other civil law countries, the litigation function of substantive law, especially the proof function, is less considered, that is, in substantive law, it is impossible to find the relatively complete or systematic general principle of burden of proof preset by legislators from the German civil substantive law as Rosenback did when he founded the normative theory. This requires China to improve its legislative skills in future legislation and remedy the above defects in time.

Based on the above three considerations, the rules of evidence make specific provisions on the distribution of burden of proof in articles 4 to 6. Article 4 stipulates the specific sharing of burden of proof in eight kinds of tort litigation, the first paragraph of Article 5 establishes the general principle of burden of proof distribution in contract dispute litigation, and the second and third paragraphs clarify the burden of proof sharing in litigation involving contract performance and agency dispute. Article 6 mainly clarifies the burden of proof that the employer should bear in labor dispute cases.

The contents of these three provisions can be divided into two categories according to the relationship with the basic rules of burden of proof established by normative theory; The first is the refinement of the basic rules of burden of proof distribution established by the normative theory, the most typical of which is the first paragraph of Article 5; The other is the distribution of burden of proof. According to other theories of burden of proof distribution, the substantive standard is contrary to the normative theory, that is, the so-called "inversion of burden of proof".

The concept of inversion of burden of proof comes from German law, which means "exercising in the opposite direction". Its meaning does not mean "transferring the burden of proof originally borne by one party to the other party", but "exempting the burden of proof that should have been borne by that party, and the other party bears the burden of proof in the opposite direction". The inversion of burden of proof stipulated in the rules of evidence is relative to the general principle of burden of proof distribution, which shows the relationship between generality and exception of legal application.

Before the promulgation of the Rules of Evidence, Chinese scholars and most textbooks generally believed that 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) was a clear stipulation of the burden of proof in Chinese law. This article stipulates that in litigation, the parties have the responsibility to provide evidence for their 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. 2. Tort litigation for damages caused by highly dangerous operations; 3. Litigation for damages caused by environmental pollution; 4, buildings or other facilities and buildings on the shelf, hanging objects collapse, fall off, fall damage tort litigation; 5. Tort lawsuit for damage caused by raising animals. From its literal expression, this provision seems to have a very obvious intention of inversion of the burden of proof, and relevant judicial and academic interpretations also clearly regard this provision as inversion of the burden of proof. But in fact, when this provision was promulgated, China did not establish the basic principle of burden of proof distribution, and there was no way to make an exception to this principle without the basic principle. In addition to the logical defects of this provision, there are also some defects in the specific content because of its general wording. Usually in tort litigation, the plaintiff's tort facts include the following aspects: 1, tort, 2, tort result, 3, there is a causal relationship between tort and tort result, and 4, the infringer is subjectively at fault. Article 74 of Several Opinions stipulates that if the defendant denies the infringement facts put forward by the plaintiff, the defendant shall provide evidence. This article limits the defendant's proof to the fact of infringement put forward by the plaintiff, so there is this possibility. If the plaintiff does not put forward the fact that there is a causal relationship between the defendant's behavior and the result or that the damage is at fault, which party will prove these facts? In addition, the result of infringement usually includes the material form of loss and the degree of various losses. According to Article 74, if the defendant denies the infringement result proposed by the plaintiff, the defendant shall bear the burden of proof. Should the defendant prove the infringement damage? In fact, it is difficult for the defendant to prove that there is no damage.

The rule of evidence has completely got rid of the defects existing in previous legislation. Firstly, based on the normative theory, the basic rules of burden of proof distribution are established. On this basis, the exceptions to the application of the rules are specified in detail. Different from Article 74 of Several Opinions, it is generally not stipulated that the defendant denies the infringement facts put forward by the plaintiff, and the defendant should provide evidence. On the contrary, it not only stipulates the types of litigation to which the exception rule applies, but also clearly stipulates the important facts that should be proved. For example, Item (7) of Article 4 of the Rules of Evidence stipulates that in the tort litigation of * * * causing damage to people due to dangerous behavior, the person who commits dangerous behavior shall bear the burden of proof for the absence of causal relationship between his behavior and the damage result. According to the basic rules of the distribution of burden of proof established in the Rules of Evidence, the causal relationship between behavior and damage belongs to the constitutive requirements of the right to claim compensation for tort damage, and the victim who claims compensation should bear the burden of proof for the facts of this requirement. This provision assigns the burden of proof to the criminal, which is a typical inversion of the burden of proof. What needs to be clear is that Article 4 of the Rules of Evidence is not all about the inversion of the burden of proof, but quite a few articles are about the refinement of the basic rules of the burden of proof in specific litigation types. For example, the sixth item of this article stipulates that the producer of the product shall bear the burden of proof for the exemption stipulated by law in the infringement lawsuit that causes damage to people due to defective products. According to the basic rules of normative theory, in product liability litigation, producers must prove the existence of legal exemption if they want to deny the victim's claim for damages for using defective products. In other words, the burden of proof for this important fact, the basic distribution rules established according to the normative theory, should have been borne by the producers. Therefore, this provision reflects not the inversion of the burden of proof, but a "positive position."

III. The Rules of Evidence confirm that under certain conditions, a judge may allocate the burden of proof according to the principles of fairness and good faith.

In Article 7 of the Rules of Evidence, there is no specific provision in the law. If the burden of proof cannot be determined according to these provisions and other judicial interpretations, the people's court may determine the burden of proof according to the principles of fairness, good faith and the ability of the parties to provide evidence.

The most striking feature of the statutory law system is that all laws are promulgated in the form of statutory law. Due to the complexity of social life and the limitation of human cognitive ability, it is inevitable that there are loopholes in written law. Judges in statutory countries are regarded as executors of laws, not creators. Judges apply the formulated laws of a country ruled by law to established facts. The process is, with the hypothesis proposition law as the major premise and the facts identified by the judge as the minor premise, and according to the three-stage deductive logic procedure, the judgment norm as the conclusion proposition is obtained. Japanese litigator Hideo Nakamura called this process "the confirmation of objective laws". Only under special circumstances can a judge fill a legal loophole or cross it and change a rule according to the legal methodology.

The distribution of burden of proof in civil litigation is very complicated. In the trial practice, the burden of proof is inverted, which is not stipulated in the law and judicial interpretation, nor can it be determined according to the general rules of burden of proof distribution. Article 7 of the Rules of Evidence gives the judge a certain degree of discretion to allocate the burden of proof in this case, provided that there is no specific provision in the law and the burden of proof cannot be determined according to this provision and other judicial interpretations. At this time, the judge can determine the burden of proof according to the principles of fairness, good faith and the comprehensive ability of the parties to provide evidence. Before the existing legal provisions are exhausted, it is illegal for judges to exercise discretion in the distribution of burden of proof. Therefore, the application of this rule has hierarchical effect and order of use.

Precautions:

1, Li Hao: Research on Burden of Proof in Civil Law, China University of Political Science and Law Press, 1993, 16.

2. Research on the Law of Burden of Proof, edited by Chen Gang, Renmin University of China Press, 2000, p. 58.

3. Modern Burden of Proof (Germany) by Pu Weiting, translated by Wu Yue, Law Press, 2000, 403 pages.

4. Ibid., 402 pages.

5. The Theory of Civil Procedure Value, edited by Xiao Jianguo, Renmin University of China Press, 2000, pp. 504-505.

6. Same as note 2247.

7. Litigation Framework and Procedure-Jurisprudence Analysis of Civil Litigation, Zhang Weiping, Tsinghua University Publishing House, 2000, 3 10-3 1 1.