The Application Of Balance Of Interest In The Civil Onus Probandi Assignment

The question of onus probandi assignment is the key of exploration the matter-of-fact of the case. It is more important than ever when the case is disputability, for the onus probandi assignment determine the juridical result. In promiscuous difficult case, the codex of onus probandi assignment is usually out at elbows in these days. Meantime, the Balance of Interest is comprehensively applied in justice practice in our society. This theory profoundly reveals the core of droit is behalf, and the genius of the codices is to protect the behalf which is should be protected. The think ways of the Balance of Interests are correlation with the think ways of the law demotics which attaches great importance to Social Influence. These may resolve the problem that occurred in the economic society. Thus, the interest balancing is a prevalent method to settle down the difficult problem and legal loophole in our society. However, its introduction of procedural law, especially the law of evidence, let judges in the allocation of the burden of proof also applies to benefits when measured in domestic law or a new topic in academic circles, and it may confused us with much difficulties and oppugn. In advance, the paper Pre-measure and sort out the reasonable of the Balance of Interests application in the civil onus probandi assignment, the interest balancing operation in the onus probandi assignment, and the defect and its correction of the Balance of Interest.Four parts are mainly carried out in the article:First, based on the studying and analyzing doctrinally the relevant theory of onus probandi assignment, the paper analyses the realistic predicament in the civil onus probandi assignment today from two points of view: one is the "identified in accordance with the law" and the praxis limitation of distribution in accordance with the rules of onus probandi assignment, the other is the dilemma state of the application of the onus probandi assignment rules.Second, briefly analyzed the original background, the value function and the connotation of the exoterica about the Balance of Interest theory, and in view of existing realistic predicament in the civil onus probandi assignment, the paper discuss the reasonable applicability of measuring the Balance of Interest in the civil onus probandi assignment in accordance with the exoterica rationality and the realism likelihood.Third, analyze the path of the Balance of Interest evolve onus probandi assignment in deepth, include the benefit formation and the definition of hierarchy relation, the basic tenet, the framework referenced system of Balance of Interest, the procedure design and the methods of the Balance of Interest, etc.Fourth, there will inevitably exist the possibility of abuse in the course of measuring the interest for the reasons, such as: the subjectivity in the procession of the benefits measurement, the consult criterion uncertainty, the judgment conclusion flexibility and the existence of the premeditate problem: the deviance between the measurement of the power balance and the legal consciousness orientation, the too general concept and the diversity category of"benefit", as well as the dynamic factor of balance. The author amend its'defects as deep as possible to regular it by the methods just like inducing the demonstration, setting-up the boundary, and explicating the measurement etc.