The Judge's Right Of Discretion In Allocating Of Burden Of Proof

Judge's right of discretion in allocating of burden of proof is very important problem for the civil judiciary practice. The system of proof is the core of the systemof civil procedure. The burden of proof is the spine of the whole civil proceedings,the core of the concept of burden of proof is the allocation of burden of proof,which is the most complicated but practical value is most important .Thereforejt is very important to research on judge's right of discretion in allocating of burden of proof.The paper is divided into five parts.In the first part,the writer introduces and comments on the representive concept of allocation of burden of proof and legislation.Because of the defects of the theory and legislation,it is necessary for judge to exercise the right of discretion in allocation of burden of proof.In the second part,the writer comments on the value requirements of judge's right of discretion in allocating of burden of proof.He declares as followed:1.litigation justice 2. litigation efficiency.3. litigation cost.In the third part,the writer discusses the principles and factors when the judge exercises the right of discretion in allocating the burden of proof.He regards that justice,good faith,the capacity of the party and the new theory about the burden of proof.In the forth part,the writer discusses the conditions when judge exercises the right of discretion in allocating the burden of proof.There are four conditions as followed: 1.the case have ended 2.non liquet.3.not regulated by law and by judicial interpretation.In the last part, the writer discusses how to control the judge's right of discretion in allocating the burden of proof.He regards the right of discretion is a double sword. If the judge unjustifiable exercises the right,there are many of bad consequence. So analyzing some expressions that the right of discretion exercised unjustifiable,the writer give some advice to control it,such as improving the judge's capacity ect.