Burden of Proof

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Burden of Proof

 

(Latin, onus probandi), in legal procedure, the rule by which the obligation to prove particular circumstances of a case is distributed among participants in the case. Under socialist law the distribution of burden of proof reflects the competitive nature of the judicial process and activates the court’s routine.

The law of the USSR establishes that each party in a civil trial must prove the circumstances on which he relies in substantiating his claims or defense. For example, the plaintiff must prove the circumstances constituting the grounds of the suit and the facts attesting to the defendant’s violation of his rights; the defendant must prove the grounds of his defense. In each specific case the scope of facts subject to proof by those participating in the case is determined by the norms that regulate the particular legal relationship (for example, in a suit for redress of an injury the burden of proof in showing the absence of guilt falls on the defendant). In suits relating to various types of contracts, the responsibility for proving violation of an obligation rests with the creditor; the debtor must prove the facts that confirm the fulfillment of his obligations. The court has the right to direct persons participating in the trial to submit additional evidence, and it may, on its own initiative, gather evidence to determine the true relationship between the parties. In a criminal trial, the law prohibits the court, procurator, investigator, or the person who conducted the inquiry from transferring the burden of proof to the accused.

The term “burden of proof is used in bourgeois civil procedure. This burden falls entirely on the parties, and the court plays no active part in questions of proof.

References in periodicals archive ?
The reverse onus has been a feature of industrial legislation since 1904, see Anna Chapman, Kathleen Love and Beth Gaze, 'The Reverse Onus of Proof Then and Now: The Barclay Case and the History of the Fair Work Act's Union Victimisation and Freedom of Association' (2014) 37(2) University of New South Wales Law Journal 471.
(32) The concepts of '"onus of proof and burden of proof" therefore has no role to play before the [review] tribunal'.
Recognition of this continues, with provision of a reverse onus of proof now in s 361 of the FW Act.
Apart from this, the government also proposes to shift the onus of proof on the accused.
The bishops placed the onus of proof on anyone who would admit a limited use of nuclear weapons, but they are clearly sceptical of the possibility in practice.
(13) This is most likely because a report prepared for the Productivity Commission that summarised material differences between the substantive provisions contained in Commonwealth, state and territory consumer laws stated that '[e]very jurisdiction has a provision reversing the onus of proof for future matters.
"The key for me is that the onus of proof is placed back on to the criminal.
"The Home Secretary has made it clear that public protection is a priority and that where the nationality of a prisoner is in doubt, the onus of proof is on the individual involved in each case."
Partly for these reasons money laundering, with an estimated "take" last year of US$11.5 billion, is a rampant activity but here, too, partly because of prodding by the European Commission, the law was tightened in 2005 exposing criminal assets to confiscation and reversing the onus of proof on a defendant who has to demonstrate the provenance of funds or other property he holds.
He told the jury: "The onus of proof is not on me but on the News of the World, on the manufacturer of the slanderous, damaging and very hurtful lies."
Surely the onus of proof is on those who are prepared to lose the essence of Gospel by turning to easier creeds or the busy-ness of church work, rather than attempt the difficult task of communicating our Good News "in the language and thought-forms of today" as the mandate of the Committee on Doctrine put it.
Even among the few respondents who replied affirmatively to this question, there was strong support for codifying into law the specific behaviors that a victim must engage in before a successful honor killing defense can be had (80 percent agreement) and for clearly placing the onus of proof on the defendant that one or more of these behaviors was engaged in (100 percent consensus).When asked whether honor killings should be punished the same as other murders, 87 percent said yes (3.5 percent were neutral and 9.5 percent said no).