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《Science of Law(Journal of Northwest University of Political Science and Law)》 2018-04
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Re-understanding of the Nature of the Civil Burden of Proof——Analysis of Article 112 of the Civil Procedure Law

Li Hao;  
the system of proof of liability is an integral part of the modern judicial system. The theoretical community's understanding has gone from the burden of subjective proof to the burden of objective proof. The burden of subjective proof explains the burden of proof from the perspective of the parties,which interprets it as the responsibility of the parties to provide evidence to the court in support of the facts claimed,but the burden of objective proof explains the burden of proof from the judge's perspective,which interprets it to overcome the rules of refereeing the truth of the facts in the process of applying the law. Judges dispose of suspected false litigation cases in accordance with Article 112 of the Civil Procedure Law which is the premise that judges proactively propose that they may be false lawsuits. And then they collect and confirm the evidence according to the legal power. If a false litigation is ultimately uncertain,the judge cannot apply Article 112 to reject the claim and to sanction the parties. This shows that the judge has applied the referee rule of proof responsibility,and also shows that the proof responsibility can not be related to the party's claim and has nothing to do with the party's responsibility to provide evidence. It is in this process that the nature of the burden of proof is fully reflected.
【Fund】: 南京师范大学法治现代化研究院“司法规律与中国特色司法制度研究”项目
【CateGory Index】: D925.1
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