Law scholars argue that the concept of "burden of proof" can in no way be equated with a duty. This is just a term that jurisprudence experts do not want to call as legal, allow us to attribute it to a technical parameter. The authenticity of the facts provided must be confirmed, but none of the laws and codes of Civil, Criminal indicates who specifically bear the burden of proof, because legally there are no such obligations between the parties. Participants in any lawsuit are entitled to free choice. They can generally ignore procedural actions.
Interesting Facts
In Russian, “burden” means a heavy burden, a painful and burdensome burden. Despite the ambiguous terminology, each side of the process seeks to reach a positive solution for itself, therefore, it proves the facts presented, which serve as the basis for claims or objections. The burden of proof belongs to the party that confirms the circumstances. The participant, depending on the need, has to establish the state of legal elements; their lack of clarity in the case will lead to unfavorable results with unfavorable consequences.
Distinctive features
The burden of proof should be distinguished from other types of burdensome duties - indicating and affirming. In the latter cases, the defendants must state their claims and objections, referring to the grounds and evidence. The directions of these concepts have the same signs when the claimant indicates and at the same time proves the circumstance that confirms the claim. This situation was established by many articles from the Civil Code of the Russian Federation (315, 330, 366, 368). True, coincidences are not present in all procedural cases, since proof is not required in bringing well-known circumstances.
The distribution of responsibilities
The right of the defendants to present facts, participate in research, pre-evaluate subjects gives a guarantee in reality of the application of procedural standards. Interested parties during the investigation in court can choose the behavior that suits their interests. The exercise of such rights is carried out by authorized officials. The distribution of the burden of proof allows you to perform a set of actions that exclude adverse consequences under the influence of various influencing measures:
- refusal by the judge to admit the true fact that the participant showed;
- failure to fulfill certain obligations in order to confirm the existence of a legal element;
- the abolition of court orders of the first level due to the fact that the court did not use all the possibilities to prove the presence of the subject.
The peculiarity and influence on the presumption process
Code of Civil Procedure of the Russian Federation in Article 56 approved the general rules in the field of distribution of duties to collect evidence on persons who present facts and circumstances that form them. Each participant in the case must prove the basis of his own statements, pointing to the above examples, the grounds, the collected base. The law provides for exceptions in the form of evidence-based presumptions. It is like an axiom in mathematics that this element exists on the basis of proven facts related to it.
Suppose a person has caused damage, but will not compensate the victim if he confirms that he is not guilty of this. Evidence-based presumption presupposes the existence of action, while exempting one side from the need to justify itself, the other participant will have to refute these facts. For him, perhaps, unfavorable consequences will come due to the unrebutted presumption.
What examples do not require confirmation?
The burden of proof in the civil process does not preclude the existence of assumptions that are considered true until their undoubted falsity is confirmed. These include:
- exemption of one participant from the provision of evidence if the facts are provided to support his interests;
- legal provisions are fixed by legal standards;
- actual presumption, which is not fixed by norms.
Family law provides an example of the effect of presumptions. A child born in an official marriage is considered to be native to both parents. The provision frees the parties from proving otherwise. The presumption of Russian law can be refuted at any time. A father who has doubts about the participation of a child’s birth can prove the opposite by passing genetic tests.
Legislative regulation
How the burden of proof is distributed in the agro-industrial complex of the Russian Federation is shown in article 9 - on an adversarial basis. These provisions are similar to the codes of civil and criminal law, in which the obligation to confirm their assumptions is imposed on the participants themselves, they are also interested in a positive verdict. The activity of the participants depends on the degree of their interest. The lawyers even got an expression that the one who put forward his statements is obliged to prove.
The burden of proof in an arbitration court is detailed in article 65 of the APC of the Russian Federation. Part 2 of this article indicates the subjects that determine the objects and sources of confirmation of facts. Part 3 approves the provision on the disclosure of all available evidence before court proceedings and prohibits participants from indicating facts that the other defendants are not familiar with.
Arbitration Elements
To understand who the burden of proof lies in arbitration, this phenomenon must be divided into details. The distribution problem is always relevant, since in these processes the responsibilities are assigned to the parties and the court. The first element in this burden is the collection of facts.
If you rely on Article 53 of the APC, then this right belongs to the participants, but the court can postpone the proceedings until the defendants provide additional documentary evidence. This indicates that basically the participants themselves act to collect supporting documentation. The court is also actively involved, as stated in the provisions of Article 54. If the case is at an impasse, there is not enough evidence due to bureaucratic obstacles, the plaintiffs and defendants turn to the court to influence the organization with legal requests to provide the necessary information.
What does judicial practice show?
The first instance of arbitration courts is not particularly active in its activities. This constraint is explained by the danger of exceeding one's competence and authority. Courts operate according to the unspoken rule, lead the participants with the help of indirect techniques to the notion that there are substantial gaps in the case that need to be filled. Although the law gives them the full right to act openly. Article 53 refers to the relationship between judges and participants in a case. The court has the right to demand from the defendants to provide expert data, any documents in order to clarify the controversial issue. These actions are not considered violations, but only contribute to the rule of law and the protection of those whose interests are violated.
The collection of confirmations is considered the initial stage in the process, but the final result completely depends on it, as well as on the lawyer who represents the interests of one of the parties, in which direction he will direct the consideration of the collected data, documented. Hearing and preparation for the process are of particular importance in it. Article 112 so far only offers a list of organizational actions, omitting the procedural nature. Lawyers and lawmakers are trying to increase the active participation of the court in cases, so that preliminary verdicts are held before the verdict, a complete data collection is made, and judges are more qualified in the matter.