In civil cases, it is always necessary for the judge to consider what the judge could do when the facts of the case could not be ascertained at the end of court hearings. And one of the most crucial differences between the common law and continental law traditions is their different theories and practices on the status of non liquet and its process of legal application. In continental law, the non-liquet status of a factual allegation is considered as the natural consequence of the limitations of human cognition together with evidential production, which is a pre-condition of the objective burden of proof (objektive Beweislast) in civil judgments. On the contrary, the Anglo-American legal system does not shed much light on this status. The only issue that matters is the burden of persuasion. If a claimant cannot satisfy the requirement of burden of persuasion, a judge should take the factual proposition as non-existent. This chapter summarizes this phenomenon as different modes of burden of proof. In continental countries when it comes to the proof of a factual allegation, there are three classifications where a judgment should be made by applying the norm of burden of proof (threefold mode of burden of proof), namely it is existent, or it is non-existent, or non-liquet. The common law tradition, however, admits only the first two classifications and the fact might be directly regarded as not existing, when the relevant party cannot persuade the judge. In the Mainland of China, it seems easy to deem that the continental thinking is followed, at least according to academic circles and two judicial interpretations issued by the SPC. Nevertheless, when we look at civil judgments in reality, it is almost impossible to find any examples of the application of non-liquet status. If the party shouldering the burden of proof is not able to present sufficient evidence, judges seem to simply adopt the common law tradition and regard the factual allegation as non-existent, rather than explicitly identify the status of non liquet and apply the norm of burden of proof afterward. Moreover, the regulations in the aforementioned SPC’s judicial interpretations are also not without confusion on the selection of continental mode. This deviation gives rise to following questions: does the status of non liquet really exist in the judicial process in China? Does the mode of burden of proof in Chinese legislation belong to the threefold or the twofold mode? Why is the threefold classification, which reflects the common view in academic circles, hardly recognized by the judicial branch? Thess questions refer not only to some conceptional discussion but also to different modes of law application on the same status of proof in litigation. In the process of answer-searching, the operation of the objective burden of proof theory in practice has been at least partially uncovered. While academia appeals to the status of non liquet, the judicial interpretation and a large number of judicial judgments showed no respect for it previously. Conversely, they choose the more direct path in common law tradition: “no persuasion, no existence”.

Burden of Proof: Chinese Approach to Resolving the Factual Issue of Non-liquet

章节
发表日期：

2025年

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Zhixun Cao

摘要

In civil cases, it is always necessary for the judge to consider what the judge could do when the facts of the case could not be ascertained at the end of court hearings. And one of the most crucial differences between the common law and continental law traditions is their different theories and practices on the status of non liquet and its process of legal application. In continental law, the non-liquet status of a factual allegation is considered as the natural consequence of the limitations of human cognition together with evidential production, which is a pre-condition of the objective burden of proof (objektive Beweislast) in civil judgments. On the contrary, the Anglo-American legal system does not shed much light on this status. The only issue that matters is the burden of persuasion. If a claimant cannot satisfy the requirement of burden of persuasion, a judge should take the factual proposition as non-existent. This chapter summarizes this phenomenon as different modes of burden of proof. In continental countries when it comes to the proof of a factual allegation, there are three classifications where a judgment should be made by applying the norm of burden of proof (threefold mode of burden of proof), namely it is existent, or it is non-existent, or non-liquet. The common law tradition, however, admits only the first two classifications and the fact might be directly regarded as not existing, when the relevant party cannot persuade the judge. In the Mainland of China, it seems easy to deem that the continental thinking is followed, at least according to academic circles and two judicial interpretations issued by the SPC. Nevertheless, when we look at civil judgments in reality, it is almost impossible to find any examples of the application of non-liquet status. If the party shouldering the burden of proof is not able to present sufficient evidence, judges seem to simply adopt the common law tradition and regard the factual allegation as non-existent, rather than explicitly identify the status of non liquet and apply the norm of burden of proof afterward. Moreover, the regulations in the aforementioned SPC’s judicial interpretations are also not without confusion on the selection of continental mode. This deviation gives rise to following questions: does the status of non liquet really exist in the judicial process in China? Does the mode of burden of proof in Chinese legislation belong to the threefold or the twofold mode? Why is the threefold classification, which reflects the common view in academic circles, hardly recognized by the judicial branch? Thess questions refer not only to some conceptional discussion but also to different modes of law application on the same status of proof in litigation. In the process of answer-searching, the operation of the objective burden of proof theory in practice has been at least partially uncovered. While academia appeals to the status of non liquet, the judicial interpretation and a large number of judicial judgments showed no respect for it previously. Conversely, they choose the more direct path in common law tradition: “no persuasion, no existence”.