1. Is there a difference between the burden of proof and the burden of proving?

The burden of proof, also known as the burden of proving, refers to the responsibility of a party to provide evidence to prove their claims. It specifically includes two levels of meaning: the burden of proof in terms of behavior and the burden of proof in terms of outcome. Firstly, the burden of proof in terms of behavior, also known as the subjective burden of proof, refers to a behavioral responsibility of a party in specific civil litigation to present evidence to the court to prove their claims in order to avoid the risk of losing the case. Secondly, the burden of proof in terms of outcome, also known as the objective burden of proof, refers to the responsibility and risk borne by a party for adverse consequences when the existence or non-existence of the fact to be proved cannot be determined and its truth is unclear. The burden of proof in terms of behavior is a dynamic burden of proof, which shifts between the parties with the change in the strength of the evidence presented by both parties and the degree of conviction of the judge regarding the fact to be proved. The burden of proof in terms of outcome is a non-transferable burden of proof, which resolves the issue of how the judge should make a judgment when the truth of the fact to be proved is unclear, that is, the burden of proof in terms of outcome can only play a role when the truth of the fact to be proved is unclear.

The concept of the burden of proving appears in the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China." This judicial interpretation does not adopt the concept of the burden of proof or the burden of proving, but uses the expression of the burden of proving, which aims to emphasize that parties in civil litigation have the behavioral burden of proof to provide evidence, and the evidence provided should also reach the degree of proving the fact to be proved. If the fact cannot be proved, the party should bear the corresponding adverse consequences, that is, the burden of proof in terms of outcome. In terms of specific content, the burden of proving is no different from the burden of proof or the burden of proving.

2. Can the burden of proof in terms of behavior be generally transferred between different parties?

For a specific fact to be proved, if the burden of proof is a unilateral responsibility, that is, which party bears the burden of proof is pre-set by legal norms, then there is no issue of transferring the burden of proof for a certain fact to be proved between different parties in the litigation. Similarly, the adverse consequences of the burden of proof can only be borne by one party and cannot be shared or jointly borne by both parties. For example, the burden of proving the establishment of a private lending relationship always lies with the creditor, and the fact that the debtor claims that the debt has been extinguished or should be repaid by others is another fact to be proved, and the debtor should bear the burden of proof.

3. When the truth of indirect or auxiliary facts is unclear, can the court apply the burden of proof in terms of outcome to make a judgment?

The burden of proof in terms of outcome is a potential and conditional burden of proof. As a form of risk responsibility allocation pre-set by law, not every case needs to use the burden of proof in terms of outcome as the basis for judgment. The burden of proof in terms of outcome can only play a role when the truth of the fact to be proved is unclear. The fact to be proved here refers to the essential facts of the rights and obligations or legal relationship of the object of the lawsuit claimed by the parties, excluding indirect facts and auxiliary facts. The unclear truth of indirect or auxiliary facts can only reflect on the essential facts, causing the essential facts to be unclear, and then the burden of proof in terms of outcome can occur. In other words, the facts whose truth is unclear generally refer to the basic facts used as the basis for judgment, that is, the essential facts of substantive law norms, and do not involve indirect facts and auxiliary facts. In general, the burden of proof in terms of outcome can only be applied to make a judgment when the truth of the basic facts is unclear.

4. What are the general rules for allocating the burden of proof?

Article 91 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" stipulates: "The people's court shall determine the burden of proof in accordance with the following principles, unless otherwise provided by law: (1) The party claiming the existence of a legal relationship shall bear the burden of proof for the basic facts that give rise to the legal relationship; (2) The party claiming that the legal relationship has been changed or extinguished or that the rights have been infringed shall bear the burden of proof for the basic facts that the legal relationship has been changed or extinguished or that the rights have been infringed." This article establishes the general rules for allocating the burden of proof based on the normative theory in the classification of legal requirements. The normative theory believes that the party claiming the existence of a right shall bear the burden of proof for the existence of the legal requirements for the occurrence of the right, and the party denying the existence of the right shall bear the burden of proof for the existence of the legal requirements that hinder the right, the legal requirements that extinguish the right, or the legal requirements that restrict the right. In trial practice, when the truth of the fact to be proved is unclear, the judge should classify the fact to be proved whose truth is unclear according to this rule of allocation of the burden of proof, determine the party who bears the burden of proof for the fact, and accordingly judge that the party bears the adverse consequences. Two issues need to be clarified here: First, the "change of legal relationship" in the above provisions can be understood in the same way as the restriction of rights. Second, the "basic facts" in the above provisions should be understood as essential facts, that is, the facts on which the substantive legal relationship or the constituent elements of the right depend, excluding the facts of the litigation procedure.

5. How is the burden of proof allocated in specific dispute cases?

According to Article 91 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, unless otherwise provided by law, the allocation of the burden of proof in specific dispute cases shall follow the following rules: (1) In contract dispute cases, the party claiming the establishment and effectiveness of the contractual relationship shall bear the burden of proof for the facts of the conclusion and effectiveness of the contract; the party claiming the alteration, rescission, termination, or revocation of the contractual relationship shall bear the burden of proof for the facts that cause the change in the contractual relationship. If there is a dispute over whether the contract has been performed, the party obligated to perform shall bear the burden of proof. If there is a dispute over the power of agency, the party claiming to have the power of agency shall bear the burden of proof. (2) In general tort dispute cases, the obligee claiming damages shall prove the essential facts that give rise to the claim for damages, that is, the fact of infringement, the causal relationship between the infringing act and the fact of infringement, the illegality of the act, and the fault of the actor. The grounds for exemption are facts that impede the creation of rights, such as the fact that the victim intentionally caused the damage, which shall be proved by the actor. (3) In labor dispute cases, if a labor dispute arises due to the employer's decision to dismiss, remove, discharge, terminate the labor contract, reduce labor remuneration, or calculate the employee's working years, the employer shall bear the burden of proof. (4) The principle of reversing the burden of proof applies in some special cases. The law allocates the burden of proof for some essential facts of certain special cases to the other party. For example, in special types of tort cases such as ecological environment damage compensation, medical liability damage compensation, and damage compensation caused by defective products, the principle of reversing the burden of proof may be applied in accordance with the provisions of the Civil Code. (5) When the law does not clearly stipulate, the people's court may consider the facts to be proved by comprehensively considering factors such as the principle of fairness and the principle of good faith, as well as the parties' ability to provide evidence, so as to incorporate them into the facts corresponding to a certain norm stipulated by laws and judicial interpretations, and then decide on the burden of proof.

6. Can the burden of proof be allocated by the judge?

The allocation of the burden of proof is statutory, that is, in principle, the burden of proof is allocated by law and cannot be allocated by the judge. The judge can only identify the norms for the occurrence of rights, the norms for the extinction of rights, the norms for the restriction of rights, and the norms for the impediment of rights on the basis of the category analysis of the norms of civil substantive law in accordance with the provisions of Article 91 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, and determine the burden of the burden of proof on this basis. The judge's allocation of the burden of proof is a process of applying the law, and it is a process of discovering the rules for the allocation of the burden of proof determined by the law through the analysis of the norms of substantive law, rather than creating rules for the allocation of the burden of proof.

7. What issues should be paid attention to when the people's court fulfills its obligation to inform about the burden of proof?

In practice, the following issues should be paid attention to when explaining the requirements for providing evidence and the legal consequences to the parties: First, the specific requirements for providing evidence and the adverse consequences that will result from failing to provide evidence in a timely manner or being unable to provide evidence must be explained in writing, and the receipt of service shall be filed in the case file. The people's court can only explain the requirements for providing evidence and the legal consequences to the parties in writing. Second, verifying the notification of the burden of proof must be a necessary procedure before the court investigation, that is, it should be verified again at the hearing whether the parties have been informed of the requirements for providing evidence and its legal consequences, and the clerk should record it in the file. Third, if the party is not informed of the requirements for providing evidence, resulting in the party missing the opportunity to provide evidence, and the party files an appeal for this reason, the people's court at a higher level may revoke the original judgment on the grounds that the original trial procedure was illegal.

8. What should be included in the notice of burden of proof served by the people's court to the parties?

The written carrier for the people's court to explain the requirements for providing evidence and the legal consequences to the parties is the notice of burden of proof. The notice of burden of proof shall include at least the following contents: (1) The principles and requirements for the allocation of the burden of proof. The parties have the responsibility to provide evidence to prove the facts on which they base their claims or the facts on which they base their defense against the other party's claims; if there is no evidence or the evidence is insufficient to prove the facts claimed by the parties, the party bearing the burden of proof shall bear the adverse consequences. (2) The circumstances under which the parties may apply to the people's court for investigation and collection of evidence. Including: ① The evidence for which the application for investigation and collection belongs to the file materials preserved by the relevant state departments and needs to be retrieved by the people's court in accordance with its authority; ② Materials involving state secrets, commercial secrets, and personal privacy; ③ Other materials that the parties and their litigation agents are unable to collect on their own due to objective reasons. (3) The time limit for providing evidence specified by the people's court based on the circumstances of the case. (4) The legal consequences of providing evidence after the deadline. If a party provides evidence after the deadline, the people's court shall order it to explain the reasons; if it refuses to explain the reasons or the reasons are not valid, the people's court may, depending on the circumstances, refuse to adopt the evidence, or adopt the evidence but give a reprimand or fine.

9. What issues should be paid attention to if a party wants to provide comprehensive evidence?

If a party wants to provide comprehensive evidence, it should pay attention to the combination of the following three aspects: (1) The combination of direct evidence and indirect evidence. Any evidence that can independently and directly prove or deny the occurrence, change, or extinction of civil legal relations between the parties is direct evidence. Such as contracts, loan slips, receipts, etc. that can directly prove whether civil legal relations have occurred, changed, or extinguished. In civil litigation, the parties should not only submit direct evidence that can directly prove the main facts of the case, but also submit indirect evidence that is closely related to the main facts of the case. Although this indirect evidence cannot independently prove the main facts of the case, it can also achieve the same evidentiary purpose when combined with other evidence. (2) The combination of original evidence and hearsay evidence. Original evidence is first-hand evidence that comes directly from the facts of the case; hearsay evidence is second-hand or second-hand or more evidence that does not come directly from the facts of the case, but is transcribed, copied, or retold. The parties should submit both of these in civil litigation in order to maximize the discovery of the facts of the case by the judge. (3) The combination of main evidence and supporting evidence. Both main evidence and supporting evidence are of great significance for correctly understanding the facts of the case and discovering the truth or falsehood of the facts.

10. How should a party provide evidence correctly?

Correct evidence provision by a party mainly refers to the following three aspects: (1) Correct means of obtaining evidence. The legality of the source of evidence and the means of obtaining evidence is one of the key elements that determine whether the evidence has probative effect. The parties shall not collect evidence by means or methods that infringe upon the legitimate rights and interests of others. (2) Correct evidence selection. That is, the parties should submit evidence that is relevant to the facts of the case. If there is no connection between the evidence and the facts to be proved, then the evidence has no probative value. (3) Correct time limit for submitting evidence. That is, the evidence should be submitted to the people's court within the statutory time limit, and providing evidence after the deadline will bear corresponding adverse consequences.

11. What conditions should be met for a party and its litigation agent to apply to the court for investigation and collection of evidence?

According to Article 67, Paragraph 2 of the "Civil Procedure Law" and Articles 94, Paragraph 1 and 95 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China", a party and its litigation agent applying to the court to investigate and collect evidence shall meet three conditions: First, there is a situation where the party and its litigation agent cannot collect evidence by themselves due to objective reasons. These situations include: "(1) The evidence is kept by the relevant state departments, and the party and its litigation agent have no right to consult and retrieve it; (2) It involves state secrets, commercial secrets or personal privacy; (3) Other evidence that the party and its litigation agent cannot collect by themselves due to objective reasons." Second, the application of the party and its litigation agent is filed before the expiration of the time limit for producing evidence. The Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China follows the idea of comparing the act of a party applying to the court to investigate and collect evidence with the act of producing evidence, and stipulates that a party and its litigation agent applying to the people's court to investigate and collect evidence shall comply with the requirements of the time limit for producing evidence and submit it before the expiration of the time limit for producing evidence. Third, it is indeed necessary to investigate and collect evidence. If the evidence that the party applies to investigate and collect is not related to the facts to be proved, is of no significance to proving the facts to be proved, or is otherwise unnecessary to investigate and collect, the people's court shall not approve it. In other words, even if the evidence that the party applies to investigate and collect meets the first two conditions mentioned above, the people's court shall still conduct a necessity review. If it is not necessary to investigate and collect evidence, the people's court shall not approve the party's application.

12. What form should a party and its litigation agent take when applying to the court to investigate and collect evidence?

In view of the fact that the people's court's investigation and collection of evidence has a great impact on the interests of the parties, the application of the parties and their litigation agents to the court to investigate and collect evidence shall, in principle, be submitted in writing in order to enhance the seriousness, openness and fairness of the application. For those who have difficulties in submitting a written application or who do not need a written application in summary proceedings, oral applications may be allowed, but the content of the oral application of the parties shall be clearly recorded and signed or fingerprinted by the parties to replace the written application.

13. What are the main types of evidence that the people's court does not need to investigate and collect?

According to Article 95 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, evidence that the people's court does not need to investigate and collect primarily refers to evidence that is not related to the facts to be proved. Relevance is the first "checkpoint" for evidence to enter litigation and the primary condition for evidence to be adopted, and it has a fundamental and fundamental role in the rules of evidence. The relevance of evidence includes two aspects: First, the evidence is of substantial significance to the facts to be proved in resolving the dispute. Its own or in combination with other evidence can play a role in proving the facts to be proved; second, the evidence has probative value, that is, it has the ability to make the facts asserted more or less likely. Evidence that is not relevant lacks the basis for proving the facts to be proved, whether the parties collect and provide it themselves or the people's court investigates and collects it. An application by a party to investigate and collect irrelevant evidence should of course not be granted. Secondly, evidence that is of no significance to the facts to be proved is also evidence that the people's court does not need to investigate and collect. From the perspective of the broad relevance of evidence, this situation can also be included in the category of irrelevance. Finally, other circumstances where it is not necessary to investigate and collect evidence. This situation is judged by the judge hearing the case based on the specific circumstances. For example, for the facts to be proved, the judge hearing the case has formed a relatively sufficient inner conviction, and regardless of whether the evidence that the party and its litigation agent apply to investigate and collect exists or what its content is, it is impossible to shake the judge's basis for conviction, which should be a situation where it is not necessary to investigate and collect evidence.

14. In addition to the statutory circumstances, if a party is indeed unable to complete the presentation of evidence due to insufficient litigation capacity, can the people's court proactively investigate and collect evidence ex officio?

Evidence belongs to the substantive content of civil litigation. Under the adversarial litigation model, the substantive content of the litigation is determined by the parties, and the court only intervenes to a limited extent in special circumstances for the purpose of protecting public interests. Based on this, Article 96 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China only stipulates that the people's court may proactively investigate and collect five types of evidence ex officio. Except for these five types of evidence, the people's court must investigate and collect evidence in accordance with the application of the parties. These five types of evidence include: (1) those involving possible damage to national interests or social public interests; (2) those involving identity relationships; (3) those involving public interest litigation; (4) those where the parties may have malicious collusion to damage the legitimate rights and interests of others; (5) those involving procedural matters such as ex officio addition of parties, suspension of litigation, termination of litigation, and recusal. The five circumstances stipulated in this article are very clear, with no catch-all clause and no room for expanded application. For the situation in practice where some parties are unable to present evidence due to insufficient litigation capacity, the people's court shall, without affecting neutrality, guide the parties to file an application for investigation and collection of evidence by exercising the right of explanation. Where it does not comply with the above provisions and there is no application from the parties as a prerequisite, the people's court shall not investigate and collect evidence ex officio, otherwise it shall be an act in violation of legal procedures.

15. Under what circumstances can the people's court apply the rules of burden of proof to determine the facts of the case?

The burden of proof is usually an unfavorable consequence, which reflects the burden of proof in the sense of result. This consequence can only take effect when the basic facts of the case are unclear, and if the facts can be ascertained, the unfavorable consequences cannot be borne by one party through the burden of proof. The facts determined through the burden of proof are a kind of fictitious facts, which should be avoided as much as possible in judicial practice and can only be applied after all evidence methods have been exhausted; where the facts can be ascertained or the facts to be proved can be determined through the standard of proof, the facts should not be determined by way of the burden of proof.

16. If a party who does not bear the burden of proof provides evidence to refute the relevant facts of the case, should the party bear the unfavorable consequences if the facts cannot be determined?

Article 108, Paragraph 2 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates: "For the evidence provided by a party to refute the facts asserted by the party who bears the burden of proof, if the people's court, after review and in combination with relevant facts, believes that the truth of the facts to be proved is unclear, it shall determine that the facts do not exist." Accordingly, a party who does not bear the burden of proof provides evidence for refutation, which can play a role in proving defense and reduce the probative force of the evidence presented by the party who bears the burden of proof. In other words, a party who does not bear the burden of proof may also provide corresponding evidence to refute the relevant facts of the case, so as to make the facts in a determined state, rather than passively let the facts be in an unclear state, even if the facts cannot be determined, the party does not bear the unfavorable consequences.