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我国《民事诉讼法》第六十四条第一款明确了“谁主张,谁举证”的证明责任的一般原则,最高人民法院《关于民事诉讼证据的若干规定》第七条则赋予法官在无法律、司法解释的具体规定下,允许法官自由裁量证明责任的分配。由于立法之法无法穷尽纠纷的类型,赋予法官在符合一定条件下行使裁量权来分配案件的证明责任具有现实意义。但最高人民法院《关于民事诉讼证据的若干规定》第七条的规定过于原则,法官在行使自由裁量权分配证明责任时亦面临着挑战。基于此,本文试从证明责任分配中自由裁量权存在的合理性入手,结合典型案例,深入剖析自由裁量权失范的现象及成因,强化对规制法官在行使自由裁量权分配证明责任的制度考察,提出合理的制度构想。
The first paragraph of Article 64 of the Code of Civil Procedure of our country clarifies the general principle of the burden of proof of “who claims and who evidences”, and Article 7 of the Supreme Court’s “Provisions on Evidence in Civil Proceedings” gives Judges In the absence of specific provisions of law and judicial interpretation, judges are allowed discretion to prove the distribution of responsibilities. Due to the fact that the law of law can not exhaust the types of disputes, it is of practical significance to give judges the burden of proof in assigning cases under certain conditions. However, Article 7 of the Supreme People’s Court’s “Several Provisions on the Evidence of Civil Proceedings” is too principled. Judges also face challenges in exercising the burden of proof of discretionary power of distribution. Based on this, this paper attempts to prove the rationality of the discretionary power in the distribution of responsibility, combined with typical cases, analyzes the phenomenon and causes of the loss of right of discretion, and strengthens the system investigation on the burden of regulating judges in exercising the distribution of discretionary power. Put forward a reasonable system concept.