The standard of proof refers to the degree of evidence necessary to establish proof in a court proceeding. According to Articles 108 and 109 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (最高人民法院關(guān)于適用〈中華人民共和國民事訴訟法〉的解釋), the standards of proof in China’s civil litigation can be categorized into two groups: most to-be-proved facts are subject to the standard of “preponderance of the evidence”(高度可能性), and some special to-be-proved facts subject to the standard of “beyond a reasonable doubt” (排除合理懷疑).
I. The “preponderance of the evidence” standard
As the name implies, “preponderance” refers to the fact that the existing evidence has shown that the fact to be proven is more probable than not. “Preponderance” does not require the evidence to reach the extent of beyond a reasonable doubt, and some judges describe it as reaching the possibility of 75%.[1]
Given the different circumstances in each case, as well as the different personal experience and knowledge of each judge, the Chinese law does not specifically provide for “preponderance”, but gives the judge the discretion to make judgment therefor. In practice, some judges think that “preponderance” can be further divided into three levels: highest possibility, higher possibility, and high possibility. [2] It can be seen that “preponderance” is a rather flexible standard, and judges need to determine whether the evidence meets the standard of proof based on the law and their personal experience. [3]
II. The “beyond a reasonable doubt” standard
Some special facts to be proved need to meet the standard of “beyond a reasonable doubt” only applicable in criminal cases. [4] “Beyond a reasonable doubt”, obviously more demanding than “preponderance”, mainly applies to the following to-be-proved facts:
1. Fraud, coercion, and malicious collusion: these are the statutory reasons for the parties to claim rescission or invalidation of the contract. Chinese laws increase the standards of proof for these matters for two reasons: the subjective psychological state needs to be proved by sufficient evidence; to avoid the contract effectiveness being easily shaken and to enhance the stability and security of the transaction as much as possible.
2. Oral will: an oral will is made by the testator orally in a critical situation. Once there is a lawsuit about the authenticity of an oral will, it often involves many unknown related problems, such as the mental state of the testator, the integrity of the witness, and whether the witness has a stake in the heir. Therefore, the statutory standard of proof is relatively high.
3. Gift: gift (especially the gift with high value) may involve complex reasons, such as repayment of gambling debt, gift due to extramarital affairs, or other conditional gifts. Raising the standard of proof can avoid neglecting the hidden doubts and reduce the possibility of misjudgment.
[1] 閻巍.對我國民事訴訟證明標(biāo)準(zhǔn)的再審視[J].人民司法(應(yīng)用),2016(31):90-96.
[2] 童建榮,陽桂鳳.蓋然性原則在事實(shí)真?zhèn)尾幻靼讣械倪\(yùn)用[J].人民司法,2015(10):95-97.
[3] 劉國如.民事審判論辯語境下經(jīng)驗(yàn)法則運(yùn)用的本質(zhì)與機(jī)制[J].人民司法(應(yīng)用),2017(10):64-69.
[4] 《刑事訴訟法》第五十五條：對一切案件的判處都要重證據(jù),重調(diào)查研究,不輕信口供。只有被告人供述,沒有其他證據(jù)的,不能認(rèn)定被告人有罪和處以刑罰;沒有被告人供述,證據(jù)確實(shí)、充分的,可以認(rèn)定被告人有罪和處以刑罰。證據(jù)確實(shí)、充分,應(yīng)當(dāng)符合以下條件:(一)定罪量刑的事實(shí)都有證據(jù)證明;(二)據(jù)以定案的證據(jù)均經(jīng)法定程序查證屬實(shí);(三)綜合全案證據(jù),對所認(rèn)定事實(shí)已排除合理懷疑。
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Contributors: Chenyang Zhang 張辰揚(yáng) , Ran Ren 任冉
