试论民事证明责任的法律性质

On the nature of burden of proof

提供证据责任与证明责任有着本质上的差异，将二者罗列在一个“举证责任”概念之下，并从提供证据的立场把握证明责任的法律性质是难以解决问题的。考察举证责任制度的历史沿革，可以看出两大法系的举证责任理论都承认在举证责任的不同解释中证明责任为其本质，证明责任的法律性质应为负担，是当案件事实于最后仍真伪不明时，一方当事人所承担的不利后果。

There is an essential distinction between the burden of producing evidence and the burden of proof.It is difficult to solve the problem while considering them as one concept as well as seeing through the nature of burden of proof from the stand of producing evidence.From inspecting the history of producing evidence system,we can find that the burden of proof is essence in the theory of producing evidence both in crimal law and civil law.The nature of burden of proof is burden and disadvantages which are taken by one litigant while the case can not be tried at last.