Short Answer: What should be taken into account in determining the allocation of the burden of proof

1. Any party claiming the existence of a right or legal relationship only needs to bear the burden of proof for the legal facts that give rise to the right or legal relationship, and does not need to bear the burden of proof for the fact that there is no obstacle to the occurrence of the right or legal relationship, and the burden of proof for the existence of facts that hinder the occurrence of the right or legal relationship shall be borne by the other party.

2. Any person who asserts that the original rights or legal relations have been or should be changed or extinguished only need to bear the burden of proof on the fact that there is a change or extinction of the rights or legal relations, and do not need to further bear the burden of proof for the fact that there is no obstacle to the change or extinction of the rights or legal relations, and the existence of such facts is also claimed and borne by the other party.

The general rule for the allocation of the burden of proof is who asserts and who bears the burden of proof.

Paragraph 1 of Article 64 of the Civil Procedure Law stipulates that "the parties shall have the responsibility to provide evidence for their own claims. ”

Paragraph 3 of Article 2 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings stipulates that: "A party has the responsibility to provide evidence to prove the facts on which its own claims are based or on which to refute the claims of the other party. ”

Paragraph 4 stipulates: "If there is no evidence or the evidence is insufficient to prove the factual assertions of the parties, the party who bears the burden of proof shall bear the adverse consequences." ”

Article 7 of the Provisions also stipulates: "Where there are no specific provisions in the law and the burden of proof cannot be determined in accordance with these Provisions and other judicial interpretations, the people's court may determine the burden of proof on the basis of the principles of fairness and good faith, taking into account factors such as the parties' ability to present evidence." ”

Special Cases:

Although the burden of proof is the obligation of the parties, the Civil Procedure Law of the People's Republic of China also stipulates that under certain circumstances, the people's court shall emphasize the collection of certain evidence. These situations include:

First, the parties and their litigants are unable to collect evidence on their own due to objective reasons.

The second is evidence that the people's court deems necessary for the trial of the case.

The third is evidence that the people's court deems necessary for appraisal or inquest.

Fourth, the evidence provided by the parties is contradictory to each other and cannot be identified.

Except for the above four situations where the people's court investigates and collects evidence, the rest of the circumstances should be investigated and collected by the parties and their litigants.

The above content refers to China Court Network - **Allocation of the burden of proof in civil litigation.

The answer must belong to the plaintiff, and the plaintiff files a lawsuit with the court, and the court will first examine whether the lawsuit meets the statutory requirements for filing a lawsuit, and then it will accept it. Of course, this burden of proof is only preliminary, and once the facts that do not meet the conditions for prosecution are confirmed in the ** trial, the court may make a judgment dismissing the prosecution.

Article 108 of the Civil Procedure Law of the People's Republic of China The following conditions must be met for a lawsuit:

1) The plaintiff is a citizen, legal person, or other organization that has a direct interest in the case;

2) There is a clear defendant;

3) There are specific litigation claims, facts, and reasons;

4) It is within the scope of civil litigation accepted by the people's court and the jurisdiction of the people's court receiving the lawsuit.

The burden of proof and its general allocation rules are theoretical examination points, which should focus on the understanding and application of basic principles, and the special allocation rules of clear responsibility are special provisions of the law.

In principle, whoever asserts it will bear the burden of proof.

In part, the burden of proof is reversed, that is, the defendant presents evidence. Such liability is directly regulated by law.

This is the rule for the allocation of the burden of proof.

1) The principle of presumption of innocence: the presumption of innocence is an irrefutable legislative presumption based on a certain value orientation. This is not to say, however, that the defendant is more likely to be innocent than guilty on the basis of the evidence already available, and therefore to presume his innocence. The goal of the presumption of innocence is to protect the legitimate rights of the defendant, to ensure the fairness of the judiciary, and to limit the ability of the innocent person to be wrongfully convicted to the lowest level.

This is the value orientation of the principle of presumption of innocence.

2) In public prosecution cases, the public prosecution bears the burden of proofIn public prosecution criminal cases, the general rule for the allocation of the burden of proof is that the public prosecution bears the burden of proof, and the defendant does not bear the burden of proof. At trial, the prosecution is required to provide the court with sufficient evidence to prove the facts of the alleged crime, and this proof must meet the legal standards. The defendant is under no obligation to prove his guilt to the court or to prove his innocence to the court.

3) In private prosecution cases, the plaintiff bears the burden of proofIn a private prosecution criminal case, the plaintiff, i.e., the private prosecutor, bears the burden of proof, and the defendant does not bear the burden of proof. This is also the embodiment of the basic principle of "who asserts - who adduces evidence" in judicial activities. If the private prosecutor cannot prove the facts of the crime he is charged with with sufficient evidence, the judge shall persuade the private prosecutor to withdraw the prosecution or use a ruling to dismiss the prosecution before trial; After the trial, the judge shall acquit the defendant.

In judicial practice, there are four common types of defense claims that can lead to a shift in the burden of proof:

1) Factual assertions regarding the defendant's capacity for responsibility, for example, the defendant was mentally ill or was in a state of mental abnormality at the time of the crime; The defendant had not reached the statutory age of criminal responsibility at the time of the crime, etc.

2) factual assertions about the legality or legitimacy of the defendant's actions, for example, the defendant's acts of killing or injuring others are justified defense; The defendant's act of destroying property is an emergency evasion.

3) factual assertions about the illegality of the investigator's or law enforcement personnel's actions, e.g., the defendant's alleged criminal conduct was due to the "investigative trap" of the public security officer; The reason why the defendant admitted his guilt was because of the torture of investigators to extract confessions.

4) a factual assertion that the defendant could not have committed the alleged criminal act, for example, that the defendant could not have committed the robbery because he was not at the scene of the crime at the time of the crime; It was impossible for the defendant to commit the homicide because the victim had been killed by another person.

Legal basis

Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings

Article 2: The people's courts shall explain to the parties the requirements for the presentation of evidence and the legal consequences, and urge the parties to actively, comprehensively, correctly, and honestly complete the presentation of evidence within a reasonable period of time.

Where parties are unable to collect evidence on their own for objective reasons, they may apply to the people's court to investigate and collect it.

In civil litigation, the burden of proving the facts of the case should be borne by the party asserting the facts, that is, the principle of "whoever asserts the case shall present evidence". The Civil Procedure Law stipulates that the parties have the responsibility to provide evidence for their own claims. Evidence that the parties and their litigants are unable to collect on their own for objective reasons, or evidence that the people's court finds necessary for the trial of the case, shall investigate and collect it.

Article 64 of the Civil Procedure Law of the People's Republic of China: Parties have the responsibility to provide evidence for their own claims. The people's court shall investigate and collect evidence that the parties and their litigants are unable to collect on their own for objective reasons, or evidence that the people's court finds necessary for the trial of the case. The people's courts shall, in accordance with legally-prescribed procedures, comprehensively and obsessively review and verify evidence.

Article 65 of the Civil Procedure Law of the People's Republic of China: Parties shall promptly provide evidence for their own claims. The people's court is to determine the evidence that the parties should provide and the time limit for the trial of the case, based on the parties' claims and the circumstances of the trial of the case. Where the parties have real difficulties in providing evidence within that time limit, they may apply to the people's court for an extension of the time limit, and the people's court will appropriately extend it on the basis of the party's application.

Answers]: a, b, c, d

On the whole, the burden of proof in criminal proceedings is a concept that is exclusive to the prosecution party. However, in a small number of specific cases where the law presumes guilt, such as cases in which a huge amount of property is unknown, and in the crime of illegally possessing top secret, confidential documents, materials, or articles that are at the time of state secrets, criminal suspects and defendants also bear the burden of presenting evidence. Therefore, option A is incorrectly stated.

According to the old rule that "the denier does not bear the burden of proof", the burden of proof is always linked to the active pleading, and the party who denies it generally does not bear the burden of proof. Therefore, option b is incorrect.

This is because the plaintiff bears the burden of proof in an attached civil lawsuit. The defender does not bear the burden of proof in criminal proceedings. Therefore, option C is incorrect.

The court does not bear the burden of proof in criminal proceedings. Therefore, option d is incorrect.

Answers]: a, c, d

Taken as a whole, the burden of proof in criminal proceedings is a concept exclusive to the prosecution. However, in a small number of specific cases where the law presumes that they are guilty, such as cases in which huge amounts of property are unknown, and in cases of illegal possession of top secret, confidential documents, materials, and articles that are classified by the state, criminal suspects and defendants also bear the burden of presenting evidence. Therefore, option A is incorrectly stated.

The main litigation obligations of the defendant in the attached civil lawsuit are: (1) truthfully stating the facts of the case. (2) Attend court trials on time and accept investigations.

3) Provide evidence to prove your claims. (4) Abide by court discipline and obey the command of the adjudicators. (5) The part of the attached civil litigation for the enforcement of effective judgments or rulings.

Therefore, option b is correct. In the attached civil lawsuit, the plaintiff bears the burden of proving the state auction. The defender does not bear the burden of proof in criminal proceedings.

Therefore, option C is incorrect. The court does not bear the burden of proof in criminal proceedings. Therefore, option d is incorrect.

The answer to this question is the ACD term.