論證明責任的裁判方法

Abstract

In civil litigation, sometimes the judge is unable to determine the truth of the main facts in the case, despite the parties and judges' efforts to provide evidence and investigation means. At this point, it is necessary to have certain rules, theories, methods or tools to guide judges to make appropriate decisions, which is called the theory of the burden of proof. Since the burden of proof answers the question of which party should bear the litigation risk in the state of authenticity unknown, it has an important guiding significance for the judge and the party to carry out court investigation, proof and other litigation activities. Therefore, the burden of proof is also called "the backbone of civil litigation" by scholars. In civil law system, the dominant theory of burden of proof is Die Normentheorie. The Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China promulgated by the Supreme People's Court on December 18, 2014 also draws on the theory of Die Normentheorie to make the rules of burden of proof in China. But in practice, it has not achieved the desired effect. At the same time, there are disputes among scholars about whether China should stick to the theory of Die Normentheorie.

The unascertainable fact and burden of proof in litigation are taken as the research object in this paper, which consists of seven chapters. The first chapter is an introduction, which mainly introduces the origin of the problem of the burden of prove, the current situation of research, as well as the research methods and the structure of the paper. The second chapter, "The evolution from the rules of proof in Roman law to Die Normentheorie ",reviews the evolution process of burden of proof from germination to formation, also discusses the position, function and limitation of all kinds of burden of proof theories including Die Normentheorie in different historical periods, emphatically analyzes the historical significance and limitation of Die Normentheorie.The third chapter, "The burden of proof theory after the Die Normentheorie ", mainly introduces various new theories arising from the criticism and revision of the Die Normentheorie in the theoretical circle of civil law system. By introducing the basic content of these new theories and analyzing their advantages and disadvantages, this paper explains why none of these new theories can replace the Die Normentheorie. The fourth chapter, "Burden of proof in common law", mainly studies the practice and achievements in the theory and practice of burden of proof in the common law system. This paper focuses on the experience and practice of the judges to adjust the burden of proof in the common law system under the condition of maintaining the basic rule of "He who asserts must prove", and reveals the phenomenon of the two legal systems coming to the same conclusion on burden of proof through the typical cases under common law. The fifth Chapter, "Legislation and judicial practice about burden of proof in China", this chapter introduces the different stages of burden of proof legislation in China, and takes empirical cases as the research object to reveal that there are a lot of cases in which the burden of proof is allocated by judicial discretion when the courts in China adhere to the general rule of "He who asserts must prove" and Die Normentheorie. At the same time, this chapter also makes a special study on non liquet, and classifies the unproven fact according to different causes, explaining the influence of the unproven fact on the judge's choice of judgment rules. The sixth chapter "Enlightenment of judicial practice to the development of burden of proof theory", combined with the research results of empirical cases, it analyzes the application of different types of burden of proof rules in China's judicial practice, as well as the connection and difference. Also compares the judicial practice in our country with that of the two major legal systems, so as to reveal the commonness and regularities in solving the problem of burden of proof. The seventh chapter, "Loopholes and ways of modern burden of proof theory", comprehensively summarizes the research results of this paper, summarizes and demonstrates the loopholes of Die Normentheorie, and puts forward some suggestions on how to overcome the loopholes of Die Normentheorie and improve the burden of proof system in China, which based on the empirical research results. In the last part, the theoretical contributions and shortcomings of this paper are explained.

The main contribution of this paper lies in five aspects: First of all, this paper thoroughly combs the burden of proof and related theories. In particular, it explains and analyzes some common terms, sources, interrelationships, theoretical values and practical effects of theories, clarifies and corrects some common misunderstandings, and comments on various academic debates and criticisms surrounding the burden of proof.

Secondly, this paper systematically studies on the non liquet in trial through empirical cases. This paper analyzes different types of the non liquet in trial, as well as the countermeasures of judges in trial practice, so as to provide objective data and research materials for scientifically setting up judicial rules of the burden of proof and reducing the non liquet.

Thirdly, this paper analyzes the contributions and historical limitations of the Die Normentheorie from the perspectives of theoretical origin, internal logic, legal basis and so on, and expounds the main loopholes of the Die Normentheorie. At the same time, this paper also analyzes the current theories that try to replace or fill the gap of Die Normentheorie, and points out the shortcomings of these theories.

Fourthly, by means of comparative study, this paper makes an in-depth analysis of the theory and practice of the burden of proof in the two legal systems and China, and explores the essence and internal logic of the burden of proof system. Moreover, by comparing the differences of legal systems, litigation procedures, judicial traditions and other external environments in different countries, the realization path and development direction of the burden of proof system in different legal systems are analyzed and demonstrated.

Fifthly, starting from the basic theory, this paper thinks and explores the basic concepts such as the obligation of evidence, the burden of proof, the fault of proof, and the value evaluation in the judgment, as well as their mutual relations. This paper makes a theoretical analysis of the role of fault of proof and evaluation in the judgment of burden of proof, and puts forward some suggestions on how to improve the legal system of the burden of proof.

Date of Award	22 Aug 2022
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Chunyan DING (Supervisor)