对民事诉讼中“证明责任倒置”的质疑

Doubt about Conversion of Testifying Responsibilities

“证明责任倒置”被理论界、实务界广泛地使用,但其理论本身难以自圆其说,它与证明责任的基本分配规则相悖,引起证明责任分配标准的混乱,应抛弃“证明责任倒置”的提法,证明责任是由实体法或者程序法按照每一案件事实构成的法律要件不同,事先进行分配的,主要有两种情况,原告一方承担证明责任;原告、被告都承担部分证明责任,被告所承担的证明责任是法律分配的,是正置,不是倒置。

The concept of testifying responsibilities has been widely used both in theory and practice, but it doesn＇t hold water. Opposite to the basic distribution standards of testifying responsibilities, it should be abandoned. According to important legal condition of different law cases, testifying responsibilities are two key points that are pre-distributed by substantive laws or procedural laws. In testifying responsibilities： one is t the plaintiff and the defendant that bear the responsibilities respectively. The responsibilities the defendant bear are distributed by laws and can not be converted.