The system of distribution of evidence for infringement liability, and the distribution of the burde

Legal analysis: First, due to the fact that there is no fault liability for good deeds; The plaintiff bears less burden of proof, and no longer has to bear the burden of proof that the defendant is at fault; Second, due to the reversal of the actual burden of proof, the defendant's burden of proof is increased, and even if the tort liability is still based on fault, the defendant must bear the burden of proof that he is not at fault.

Legal basis: Article 1167 of the Civil Code of the People's Republic of China: If the tort is to endanger the personal or property safety of others, the infringer of the manuscript lead has the right to request the infringer to bear tort liabilities such as stopping the infringement, removing obstacles, and eliminating dangers.

1. The fact of damage objectively exists;

2. There is a causal relationship between the infringement and the fact of damage;

3. The act is illegal;

4. The perpetrator is at fault.

Of the above four essential facts, the first.

The burden of proof shall be borne by the plaintiff. In practice, the plaintiff generally does not need to prove it separately, because after the fact of infringing on the rights and interests of others is proved, unless the defendant can prove that its act is lawful, the illegality of the act will be determined. The question of who bears the burden of proof for the fourth element is a more complex one.

Judging from the laws and litigation practices of various countries in the world, the burden of proof of fault has gone through an evolutionary process from the plaintiff proving that the defendant is at fault to the defendant bearing the burden of proof that he is not at fault in all or some cases. The civil laws of the former Soviet Union and the socialist countries of Eastern Europe adopted the method of presumption of fault, placing the burden of proof on the defendant's side, requiring the defendant to bear the burden of proving that the damage was not due to his fault.

Legal basis: Civil Code of the People's Republic of China

Article 120:Where civil rights and interests are infringed upon, the infringed party has the right to request that the infringer bear tort liability.

Article 183:Where oneself is harmed as a result of protecting the civil rights and interests of others, the infringer bears the civil liability of the clan, and the beneficiary may give appropriate compensation. Where there is no infringer, the infringer has escaped, or is unable to bear civil liability, and the victim requests compensation, the beneficiary shall give appropriate compensation.

Article 1167:Where the tortious conduct endangers the safety of others' persons or property, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstructions, or eliminating dangers.

Article 1168:Where two or more persons jointly commit tortious acts, causing harm to others, they shall bear joint and several liability.

Allocation of burden of proof for infringement: The plaintiff adduces evidence to prove that the defendant has committed the tort, that the tort has caused damage to itself, that there is a causal relationship between the tort and the fact of the damage, and that the defendant is subjectively at fault. In cases where there are special provisions in the law, the defendant is subjectively at fault and the presumption is applied or ignored.

[Legal basis].Article 1165 of the Civil Code.

Where the perpetrator infringes upon the civil rights and interests of others and causes harm due to his fault, he shall bear tort liability. Where the perpetrator is presumed to be at fault in accordance with the provisions of law, and his Tanchang cannot prove that he is not at fault for self-examination, he shall bear tort liability.

Article 1166.

Where the actor causes harm to the civil rights and interests of others, regardless of whether the perpetrator is at fault or not, and the law provides that tort liability shall be borne, follow those provisions.

1. In a patent infringement lawsuit arising from an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product shall bear the burden of proof that the manufacturing method of the product is different from the patented method;

2. In a tort lawsuit for damage caused by highly dangerous operations, the perpetrator shall bear the burden of proof on the fact that the victim intentionally caused the damage.

[Legal basis].

Article 1252 of the Civil Code.

Where buildings, structures or other facilities collapse or collapse and cause damage to others, the construction unit and the construction unit shall bear joint and several liability, except where the construction unit and the construction unit can prove that there are no quality defects. After the construction unit or construction unit has made compensation, if there are other responsible persons, it has the right to recover compensation from the other responsible persons.

If a building, structure or other facility collapses or collapses and causes damage to others due to reasons attributable to the owner, manager, employer or third party, the owner, manager, user or third party shall bear tort liability.

The principle of allocation of the burden of proof is as follows:

1. Any party who claims the existence of a right or legal relationship shall only bear the burden of proof for the legal facts that gave rise to the right or legal relationship; The burden of proof of the existence of facts that prevent the occurrence of the right or legal relationship rests with the other party.

Picul. 2. Any party who asserts that the original rights or legal relations have been or should be changed or extinguished shall only bear the burden of proof on the fact that the rights or legal relations have been changed or extinguished; There is an obstacle to a change in rights or legal relationship or.

The burden of proof for the extinguished facts shall be borne by the other party.

In addition to this, the plaintiff has to prove that:

1. The fact of damage objectively exists;

2. There is a causal relationship between the infringement and the fact of nuclear damage;

3. The act is illegal; In practice, the plaintiff generally does not have to prove it separately.

4. The perpetrator is at fault.

The defendant bears the burden of proof for the statutory reasons for relief.

1. How to divide the principle of compensation for tort liability?

1. The principle of full compensation.

That is, if the tortfeasor causes damage to others due to the tortious act, the size of the liability shall be based on the actual losses caused by the tortious act, and the tortfeasor shall be fully compensated.

1) Where damage is caused by infringement of the property of the state, collective, or citizen, compensation shall be made not only for the loss of the actual property itself, but also for the loss of available benefits.

2) Where a citizen's body is infringed and injuries are caused, compensation shall be made for medical expenses, income lost due to lost work, living allowance for the disabled, and other expenses; and where death is caused, funeral expenses, necessary living expenses for those supported by the deceased during his lifetime, and other disturbance expenses shall be paid.

3) Where a citizen's right to name, portrait, reputation, or honor is infringed, or a legal person's right to name, reputation, or honor, the victim may demand compensation for moral damages.

2. The principle of limited compensation.

It is mainly applicable to some special tort damages.

2. What is the civil liability for tort?

1) Cease the violation. In order to stop the infringement in a timely manner and prevent the expansion of the harmful consequences, the victim may request the people's court to order the infringer to immediately stop the ongoing infringement. For example, at the request of the injured person, the people's court may order the publishing house that published the infringing book to immediately stop publishing, distribute the infringing book, and take back, seal, or destroy the published book.

2) Eliminate the impact. If the infringer bears this responsibility, it should take effective measures to explain the truth of the matter and eliminate the negative impact of its infringement on the copyright owner.

3) Make a public apology. That is, in a way that is understandable to the public. Acknowledge the infringement and apologize to the copyright owner.

4) Compensation for damages. Compensation for losses is also known as damages. It means that the infringer uses his own property to compensate for the damage caused to the needee by his own actions.

Compensation for damage to property is based on actual damage, including direct damage and indirect damage, as the criterion for determining the amount of compensation, and it is not allowed to obtain compensation in excess of actual damage. For compensation for moral damage, there is usually a provision for cessation of the infringement, restoration of disrepute, etc., and limited economic compensation.

The plaintiff has to prove:

1. The fact of damage objectively exists;

2. There is a causal relationship between the infringement and the fact of damage;

3. The act is illegal; In practice, the plaintiff generally does not have to prove it separately.

4. The perpetrator is at fault.

The defendant bears the burden of proof for the statutory reasons for relief.

How to stipulate the burden of proof in tort liability disputes.

1. The parties have the responsibility to provide evidence for their own claims, that is, who asserts them, who shall provide evidence.

2. In the event of a dispute arising from environmental pollution or ecological damage, the actor shall bear the burden of proof for the circumstances of not being liable or mitigating responsibility as provided by law, and that there is no causal relationship between the act and the damage, which is a situation where the burden of proof is reversed.

Allocation of the burden of proof for medical malpractice.

Medical institutions refer to hospitals or medical and health technicians of all levels and types approved or recognized by health administrative organs. In tort litigation arising from the act of medical inadequacy for rotational therapy, the medical institution shall bear the following burden of proof:

1. There is no causal relationship between the patient's damage and the medical treatment of the medical institution. The causal relationship in tort liability refers to the causal relationship between the illegal act and the result of the damage. In most cases, the causal link between the medical act and the patient's injury is clear.

However, in some difficult and complex medical disputes, the causal relationship can only be determined after a special technical appraisal.

2. There is no medical fault on the part of the medical institution. If a medical institution wants to exempt itself from tort liability, it must prove that there is no medical fault in the process of diagnosis and treatment. Some scholars have already made some explorations and studies in this regard, which are worthy of reference and reference.

That is, the way for a medical institution to prove that it is not at fault is as follows:

1) The result of the damage is a medical accident. Medical accident refers to the result of damage caused by unforeseen causes of medical care or the result of medical damage that cannot be avoided by medical care provider.

2) There are unforeseen complications. Such "complications" must be unforeseen and unavoidable in order to be exempt from liability.

3) Patients and their families do not cooperate**. If the non-cooperation of the patient and his or her family is the entire cause of the damage, the medical institution may be exempted from liability for compensation; If the failure of the patient and his or her family to cooperate** is only one of the reasons for the occurrence of the consequences of the damage, and the medical institution is also negligent, the responsibility shall be shared by both parties in accordance with the principle of negligence offsetting the empty cover.

Article 4 of the Several Provisions on Evidence in Civil Proceedings stipulates that: "In tort litigation arising from medical acts, the medical institution shall bear the burden of proof that there is no causal relationship between the medical act and the result of the damage and that there is no medical fault." ”

Legal basis: Article 64 of the Civil Procedure Law of the People's Republic of China (2017 Revision) Burden of proof and authority to explore.

It is the responsibility of the parties 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 follow legally-prescribed procedures to comprehensively and objectively review and verify evidence.