| “The necessity of proof always lies with the person who lays charges.” This Roman law proverb vividly revealed the importance of the distribution of burden of proof to the benefits of the interested parties.Civil burden of proof generally describes the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established,any insufficient evidence may lead to the losing of the suit.The German scholar Rosenberg’s Die Normentheorie is most widely accepted with regard to the theory of the distribution of civil burden of proof.According to Rosenberg,the basis for justifying the distribution of responsibility is the substantive law.A judge can solve the problem of distribution of burden of proof in all civil cases simply by classifying the facts of the legal requirements and mechanically follows the rule of “ he who asserts must prove”.However,in the application of justice,it has encountered practical difficulties such as the distribution of legal loopholes,the distribution of formalism,and the improper allocation of judges.There is a difference between theoretical research and practical application.How to make up for the inadequacies of existing legal provisions and theories and to solve the dilemma of justifying the distribution of responsibilities in judicial practice has become a major issue that needs to be solved urgently in theoretical research and judicial practice.In order to solve the dilemma of distribution of burden of proof in judicial practice in China and realize the judicial justice,interest measurement is introduced as a concrete method of distribution of civil burden of proof in judicial practice,based on Rosenberg’s Die Normentheorie.By coordinating the interests of all parties,the introduction of interest measurement purses the overall balance of interests of all parties to achieve the judicial justice,emphasizes the leading role of judges in judicial adjudication and pays much attention to the social effects of justice.First of all,the distribution of burden of proof itself has conflicts between personal interests,personal interests and social interests,and plays an important role in balancing conflicts of interest.Meanwhile,based on the status quo of China’s current lack of relevant legislation and the limitations of the Die Normentheorie,as well as the function of interest measurement to make up for legal loopholes and realize the judicial justice,it is practically necessary to introduce interest measurement into the distribution of civil burden of proof.Second,modern civil law protects personal interests as well as social interests.The pursuit of both procedural justice and substantive justice of civil procedure law shows that the value orientation of the distribution of civil burden of proof is consistent with the objective of the interest measurement.Moreover,the introduction of interest measurement helps to bring the judge’s subjective initiative.The measurement of interest has been applied in China’s relevant legislation and judicature,and it brings significant effect.It is practically feasible to introduce the measurement of interest into the burden of civil proof.However,since the introduction of interest measurement gives a judge greater discretion,it may bring such problems as arbitrary or even abuse of justice.Therefore,in order to standardize the application of interest measurement in the judiciary,it is necessary to unify and standardize the rules applicable to the measurement of the benefit of judges in the distribution of civil burden of proof.First of all,the principle of interest balancing in the judiciary must be clarified.The current law stipulates that judges exercising their discretion should follow the principle of fairness and good faith,and can increase the priority and proportionality principle of interest protection,which can help increase the operability of judges’ interests.Secondly,judges must follow legal standards and social value standards when balancing interests.The balancing of interests in judicial practice must be based on legality as the primary premise,and the outcome of interest balancing should be consistent with the pursuit of mainstream social values.Third,the specific considerations of interest measurement in the distribution of civil burden of proof can be comprehensively considered from the perspective of negative facts,the distances between the interested parties and evidence,the protection of the weak and social public interests,the abstract probabilistic measurement,and the offenders’ burden of proof.Finally,to further prevent the abuse of judges’ discretion,we can strictly control the initiation of interest measurement in the judiciary,and explore the mechanism for the initiation and supervision of case benefit measurement to be assigned to the court’s adjudication committee.When judges measure interests,they can be divided into five steps: first,sort out the facts that can be ascertained and determine the minor preconditions;second,identify the interests involved in the case;third,conduct value judgments;fourth,draw conclusions on the preliminary interest measurement;and fifth,find the legal basis and determine the major premise. |
