民事诉讼法适用中的证明责任

The Burden of Proof in the Application of the Civil Procedure Law

在民事诉讼法的适用中,同样存在着证明责任问题。诉讼法要件事实也会出现真伪不明,对此法院也需要根据证明责任的规则作出裁定或决定。由于程序结构、证明对象、证明标准、法院是否依职权收集证据、民事诉讼法规制的内容等方面的差异,民事诉讼法中的证明责任呈现出一系列不同于民事实体法的特点。但理论界与实务界对民事诉讼法适用中证明责任的关注度远不如民事实体法。对这一问题的忽略不利于实现十九大报告重申的"公正司法"要求,也不利于健全办案过程遵循程序公正的司法制度。当事人起诉、上诉、申请再审、提出申请、提出异议,均可能对程序法要件承担证明责任。当事人对有利于自己的要件事实承担证明责任这一原则也同样适用于民事诉讼法中的要件事实。

In the application of the Civil Procedure Law, there still exists the issue of burden of proof. Since the truth of essential fact of the procedure law sometimes is controversial, the court also needs to make judgments or decisions based on the rules of burden of proof. Due to the difference in procedure structure, object of proof, standard of proof, whether the courts collect the evidence in accordance with the authority, content in regulations of the Civil Procedure Law and other aspects, the burden of proof in the Civil Procedure Law shows a series of features different with civil substantive law, which explains why the theory and practice circles are far less concerned about the burden of proof in the application of Civil Procedure Law than the civil substantive law. The neglect of this issue is disadvantageous to achieve the requirement of ＂impartial justice＂ reiterated in the report of the 19th CPC National Congress and improve the judicial system of abiding by procedure justice in the process of a case. It is possible for the parties to take the burden of proof of essentials in the Civil Procedure Law when they prosecute, appeal, apply for a retrial, submit an application or raise an objection. The principle that the parties should take the burden of proof of essential facts beneficial to themselves can also be applied to essential facts of the Civil Procedure Law.