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在进行诉讼时一种常见的客观现象是案件事实真伪难辨,出现悬而未决的情况,双方当事人要针对案件提供各自的证据证明,并承担事实真伪不明时裁判上的不利后果。证据该由哪方提出,这种不利后果该如何分配是证据制度的核心问题。然而我国《民诉法》和《最高人民法院关于民事诉讼证据的若干规定》,以下分别简称为《民诉法》与《证据规定》,制定了相关证明责任制度,其内容较为分散,出现部分重叠,缺乏统一清晰的分配规则。鉴于此,文章通过评析域外的立法例及学说为我国证明责任的分配体系的完善提出建议。
A common objective phenomenon during litigation is the fact that the facts of the case are difficult to distinguish and appear in an outstanding situation. Both parties should provide their respective evidences for the case and bear the unfavorable referees’ consequences when the truth of the facts is unknown. Where should the evidence be put forward? How to distribute such adverse consequences is the core issue of the evidence system. However, the Civil Procedure Law of the People’s Republic of China and Certain Provisions of the Supreme People’s Court on Evidence in Civil Litigation are respectively referred to as the Civil Procedure Law and the Evidence Rules for short hereinafter, and the relevant proof responsibility system is formulated. The content is relatively fragmented and some Overlap, lack of uniform and clear distribution rules. In view of this, the article puts forward suggestions on the improvement of the distribution system of burden of proof in our country by appraising the legislation and doctrine outside the domain.