民事舉證責(zé)任倒置淺析

1、民事舉證責(zé)任倒置淺析( Analysis of civil burden of proof upsidedown)Analysis of civil burden of proof upside downThe burden of proof is the core of civil procedure. The sharing of the burden of proof is the core of the burden of proofQuestion. At present, the two principles of sharing the burden of proof are &

2、quot;who advocates, who gives proof" and "the burden of proof"Inversion". Since the former is the main principle, boththeorists and practitioners attach great importance to it. The latter is complementaryPrinciple, its importance is not enough. In fact, we should strengthen the s

3、tudy of the principle of inversion of burden of proofTheory is practical in both theory and practice. This paper tries to do some superficial research on the following questions,With a view to attracting.First, the definition of the burden of proof inversionWhat is the inversion of burden of proof?

4、In the eyes of many people, this is a self-evident, no need to explore the questionIt is rarely defined. There are few definitions that can be seen at the momentOr that boring question. The definition of the burden of proof can be broadly divided into two categories. One category will bear the burde

5、n of proofDefined as: "the plaintiff's infringement facts, the defendant denied the burden borne by the defendant."." 1This kind of definition limits the burden of proof inversion in the tort lawsuit, tentatively called infringement upside down theory. Another kindThe inversion of

6、 the burden of proof is defined as: "the claims made by the plaintiff are not provided by the evidence."Bear the burden of proof." 2, this kind of definition no longer limits the burden of proof in the infringement lawsuit, therefore tentatively saidIt is generally inverted.The revers

7、e theory of tort limits the inversion of burden of proof in tort litigation, which is related to the provisions of substantive law in our country.China's general principles of civil law stipulates that the burden of proof should be reversed in some special torts. But is that right?Does that mean

8、that the burden of proof is useless in this area? Not really. According to scholarsResearch, in some foreign countries, some non infringement occasions, such as prejudice to the other side of the burden of proof, there will be burden of proof inversionSituation. 3, therefore, the definition of "

9、;tort upside down" has madea narrow definition of logical error. Say upside downThe above-mentioned mistake of "tort upside down" has been taken, and the burden of proof inversion is no longer confined in the field of infringementStep. But the tort inverted says another error exists i

10、n the pan was inverted over that for lianguoduan said,The inversion of the burden of evidence limits the defendant's claim between the original defendant and the defendant, and the defendant denies the evidence. Inversion of burden of proofIt does happen between the original defendants, but not

11、limited to them. In the case of third people participating in the proceedings, will also beCase of inversion of burden of proof. For example, a and B infringe upon the manufacture method and invention patent of this product, at this timeA B is the plaintiff, defendant, according to law, this should

12、only on the burden of proof, B should bear forProof responsibility. In the process of the lawsuit, the product patent of the dispute between Party A and B. B. is his own specialtyLi, therefore, has initiated an action in the capacity of third people who have the right to claim independenceThe burden

13、 of proof is reversed by the burden of proof. At this point, the burden of proof inversion is no longer only existBetween the original defendant and the defendant, there are also third people who have the right of independent claim. In addition, liftThe liability of a witness includes both the act l

14、iability and the result liability, wherein the action liability is transferred back and forth between the partiesThat is, inverted, not inverted, factors, upside down can only be the result of responsibility. To sum up, the author thinks that.The inversion of burden of proof is defined as: in a civi

15、l lawsuit, the party's claim to it is true in the caseWhen the suspect is unknown, he does not have to bear the responsibility for the result, while the other party bears the responsibility for the result.The object of inversion of the burden of proof is that the party does not bear the responsi

16、bility for the result instead of the otherThe fact that the party bears the responsibility and the truth is unknown. Concretely speaking, what is the matter in actual litigation?The burden of proof can be reversed. Clear up the problem and discuss the burden of proof behind usThe scope of applicatio

17、n is great.The inversion of burden of proof often occurs in the field of special tort. Special tort is especially manifested in the following aspectsThe first part is the separation between the subject of action and the subject of duty. If the staff of state organs cause losses due to the performanc

18、e of their dutiesThe state organs shall bear civil liability. In such a case, the victim will still have to pay for every act of infringementThere is no inversion of proof in the proof of a piece of evidence. Two is to implement the principle of no fault liability. Such as environmental pollution ca

19、used damageHarm. In this case, the existence of the fault is no longer the object of proof in the lawsuit, nor can the defendant pass itForgive yourself for being blameless." 4 because neither side needs proof of no fault, no fault is not raisedObject of reversal of proof responsibility. Three

20、is to implement the principle of presumption of fault and liability. Such as buildings or other settings, as well as constructionA suspended object on a building; a suspension. Damage caused by falling and falling. At this point, the victim canClaim that the infringer is wrong, but because of the pr

21、esumption of fault, it does not need proof, if the infringer wants to avoid liability, thenIt needs proof to prove that it is not at fault. If the infringer, through proof, can only make it true that there is no fault, it is still unknownLiability for results. Undoubtedly, presumptive fault is the o

22、bject of inversion of burden of proof.The presumption of fault can indeed mitigate the burden of proof of the victim, D, but if limited to this, he alsoNot enough to relieve the victim. Therefore, some scholars suggest that in the tort lawsuits caused by environmental pollution caused by human injur

23、y,Taking into account the difficulty of the plaintiff in proving the causal relationship between the pollution act and the result of the damage, it should also be takenReverse of duty of evidence." 5, in the product quality unqualified cause damage to the infringement proceedings, because of th

24、e implementation of no faultThe principle of liability, the victim does not need to prove the fault, but according to the current who advocates who is the principle of proof, the victimThe following facts still need to bear the burden of proof: (1) the quality of the products are flawed or improper

25、dangerous, and itThey already exist when the product is sold; (2) the victim has been injured by personal or property by using the product;(3) the quality of product defect is the direct cause of damage. Of these three facts, only second are easyTo prove that the remaining two items proved to have c

26、onsiderable difficulties. Therefore, some scholars suggest that for the purpose of litigationEffective implementation of the "general principles of civil law" 122nd articles to protect the interests of consumers legislative intent on the above twoIn fact, the burden of proof is reversed. 6

27、, the above proposal makes sense. Therefore, the presumption of causation and presumptionQuality defects should also be the object of the burden of proof inversion.Another object of inversion of the burden of proof is the fact that the evidence is taken by obstruction. In the case of prejudice again

28、st the other partyThe responsibility for causing the facts to be unknown is clearly not in the burden of proof, but entirely in the other party. If you pressAccording to the principle of sharing the burden of proof, the result of the adverse litigation theory will be completely sentenced to bear the

29、 burden of proofThe burden is bound to be contrary to the nature of the law, justice and justice. At this point, the burden of proof should be reversedNo doubt it will be more appropriate. SevenThe fact that it is difficult for the parties to collectevidence and difficult to adduce evidence may be t

30、he object of inversion of the burden of proof.In the case of patent infringement caused by the invention patent of manufacturing method, because the patent holder keeps away from the evidence,It is difficult to collect evidence under the control of the defendant and its patented method of production

31、. And for the accused,The best way to produce oneself is the clearest proof that the defendant can easily produce evidence to prove the productionProducts are not produced by patented methods but by other methods. Therefore, China's patent law sixtieth, second regulationsSet: "in the event

32、of an infringement dispute, if the invention patent is a new product manufacturing method, manufactured the same."The unit or individual of the product shall provide proof ofthe method of manufacture of the product." This should have been done by the plaintiffThe burden of proof of the inv

33、ention patent is placed on the defendant when the accused defendant fails to use the method of manufacture of his product without permission,The defendant bears the burden of proof on his own failure to use the plaintiff's patent method. When the authenticity is unknown, the defendantResponsibil

34、ity for consequences.In the case of joint dangerous act causing damages, the plaintiff only needs to prove the defendant in the lawsuitThe act of having a dangerous nature and the act of doing harm. As for the specific number, which one is the defendant?A dangerous act is imposed by each of the accu

35、sed in the event that the damage is not his own. Therefore,In this case, the object of inversion of the burden of proof is the executor of the action.Some people believe that "in the case of damages caused by environmental pollution, the burden of proof should be reversed.",It is entirely

36、the responsibility of the victim or the intentor negligence of the third or the other to prove that the damage is entirely the fault of the victimThe facts of the disclaimer are reported. 8, according to this view, the exemption condition is also the object of the burden of proof inversion. Author r

37、ecognizedIt is wrong to think so. The burden of proof on the injured party is "who advocates, who lays down the evidence" principleReflect, rather than reflect the burden of proof inversion. For example, the exemption conditions for environmental pollution infringement are as follows:The v

38、ictim causes the intentional or negligent act of the third, the act of war, the irresistible natural disaster, the responsible lampAny negligence or other negligence committed by the competent authority of the tower or its navigational aids in the course of its performance shall be in due courseReas

39、onable measures can not avoid pollution damage to the environment. In fact, when the victim was suing, onlyThere must be claims for infringement, damage consequences, causal links. There is no need to assert oneself without causing damageThird people have no intention or negligence. The defendant ga

40、ve evidence for the exemption, not because the other party made such an offerIt is argued that the laws require proof by themselves, but because they claim that they should not be held liableIn the case of exemption, try to provide evidence, and when the facts appear unknown, the defendant shall bea

41、r the responsibility for the result naturally,Is entirely their own views, the principle of proof of their own embodiment.Three, the scope of application of the burden of proof inversionIt is generally believed that the inversion of burden of proof applies to the following circumstances: (1) the inv

42、ention of the product, the invention of the method, and the patent of inventionPatent infringement litigation, (2) tort lawsuits caused by highly dangerous operations; (3) environmental pollutionCompensation for damage caused by dyeing: (4) suspension of buildings or other facilities and buildings;

43、suspensionTort lawsuits involving the collapse, fall and fall of objects, and (5) the infringement of animal damage caused by animal rearingLitigation; (6) the provisions of the law concerning the burden of proof borne by the defendant. As to the inversion of burden of proof, why?The application in

44、these cases has not been explained.Under what circumstances, the inversion of the burden of proof depends on whether there exists the object of inversion of the burden of proof.According to the above analysis of the object of inversion of burden of proof, the inversion of the burden of proof shall a

45、pply to the following circumstances:(1) tort litigation with the presumption of fault. Such as buildings or other facilities, and buildings on the shelfTort lawsuits in which the hanging objects fall, fall off, fall and cause damage to people, as mentioned in medical disputesLitigation.(2) tort liti

46、gation with the presumption of causation. Such as environmental pollution damage infringement proceedings; production;Infringement litigation of damage caused by substandard quality of goods.(3) it is difficult to collect evidence and is difficult to provide evidence. Such as product manufacturing m

47、ethod, invention patentTort action of patent infringement lawsuit and joint dangerous act.(4) the other party's action to impair the burden of proof.From the above analysis, we can see that the inversion of the burden of proof does not apply to the invasion of highly dangerous operationsTort action against the establishment and breeding of animal damage.China's "general principles of civil law" 123rd provisions:"engaged in high altitude, high pressure, flammable, explosive, highly toxic