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作为民事诉讼理论的脊梁,证明责任制度,应明确证明责任对应的是实质上的举证责任,而不似举证责任那般有实质和形式之分,只要一提证明责任必是指实质上的举证责任。我国理论界绝对主流观点是采用法律要件分类说基础上的基本原则作为分配原则,这一前提下,证明责任倒置需要立法做出规范,使得法官能够自觉地通过对实体法的分析,抽象出相关的法律要件事实,从而更准确有效地指导证明责任倒置规则在实践中的适用。
As the backbone of the theory of civil litigation, the burden of proof should be clearly demonstrated that the responsibility corresponds to the substantive burden of proof, rather than the burden of proof so substantive and formal points, as long as the burden of proof must be referred to the substantive evidence responsibility. The absolute mainstream view of our country’s theorists is to adopt the basic principles based on the classification of legal elements as the principle of distribution. Under this premise, the burden of proof should be regulated by legislation, so that judges can consciously pass the analysis of substantive law to abstract the relevant In order to guide the application of the burden of proof in practice more accurately and effectively.