Provision of evidence and burden of proof at court
Provision of evidence and burden of proof are considered as one of the basic principles in civil procedures. The involved parties have the right and obligation to provide evidence and prove to protect their rights and interests as well as to provide the Court with sufficient evidence to resolve civil cases objectively, accurately and lawfully.
Burden of proof
Clause 1, Article 6 of the Civil Procedure Code 2015 stipulates that “The involved parties have the right and obligation to actively collect and submit evidence to the Court and prove that their request is grounded and lawful”. The plaintiff is the person who files the lawsuit and requests the Court to protect their rights and interests, so the plaintiff is under obligation to prove that his or her rights and interests have been actually violated. Contrary to the plaintiff’s obligations, the defendant will have the right to prove the plaintiff’s claims are not correct, which is not an obligation. Like the plaintiff, the person with related legal rights and interests must prove before the Court that his legal rights and interests are infringed in order to request the Court to protect his or her legitimate rights and interests.
It should be noted that the litigants have the right and obligation to submit evidence to the Court in order to force the parties to submit all the evidence they have to the Court, avoiding the situation where they retain the evidence and only submit it at the first instance or appellate court to cause difficulty for the Court and the other involved parties.
However, under Clause 1, Article 91 of the Civil Procedure Code 2015, in the following cases, the person who requests the Court to protect his or her legitimate rights and interests is not required to collect, provide, hand over to the Court documents and evidence to prove that such request is grounded and lawful:
- Consumers suing are not obliged to prove the faults of organizations or individuals trading goods and services. The organizations or individuals trading goods and/or services that are sued shall be obliged to prove that they are not at fault and cause damage as prescribed by the Law on Protection of Consumer Rights;
- The litigant who is an employee in a labour case fails to provide and hand over the documents and evidence to the Court since such documents and evidence are being kept and managed by an employer. Then, the employer shall provide and submit such documents and evidence to the Court. If the employee who initiates a lawsuit unilaterally terminates the employment contract in the case that the employer is not allowed to exercise the right to unilaterally terminate the labour contract or to take the labour disciplines against the employee in accordance with the labour law, the burden of proof is on the employer;
- Other cases where the law provides for the burden of proof, such as Clause 4, Article 203 of the Intellectual Property Law requires the defendant to prove that his or her products are manufactured under a process different from the one protected under certain circumstances; Clause 3, Article 295 of the Commercial Law 2005 stipulates that the violating party is obliged to prove to the aggrieved party about the case where his or her responsibilities are exempted; Clause 3, Article 351 of the Civil Code 2015 stipulates that the party with civil obligation is not liable for civil liability if proving that the failure to perform any obligation is completely due to the fault of the party who has the right; Article 584 of the Civil Code 2015 stipulates that the petitioner for compensation for damage in tort is not obliged to prove the fault of the person who has caused the damage.
Clause 1, Article 96 of the Civil Procedure Code 2015 stipulates that “During the Court’s settlement of civil cases, the litigant has the rights and obligations to submit documents and evidence to the Court. If the submitted documents do not warrant sufficient grounds to resolve the case, the Judge shall request the litigant to submit additional documents and evidence. If the litigant fails to hand over or insufficiently submits documents and evidence requested by the Court without plausible reasons, the Court shall resolve civil cases based on the documents and evidence that the litigant has submitted and the Court has collected in accordance with Article 97 of this Code”.
The legal consequence for the litigant’s failure to provide and submit evidence to the Court is that the Court shall resolve civil cases based on the documents and evidence that the litigant has submitted and the Court has collected.
Court’s assistance in collecting evidence
The plaintiff can request the Court to assist him or her in collecting evidence. Specifically:
- Point e, Clause 1, Article 97 of the Civil Procedure Code provides that agencies, organizations and individuals have the right to collect materials and evidence by themselves by requesting the Court to collect documents and evidence if the litigant cannot collect documents and evidence.
- Clause 2, Article 6 of the Civil Procedure Code 2015 states that “The Court takes the responsibility for assisting the litigant in collecting evidence and only proceed to collect and verify evidence in cases stipulated by this Code”.
In addition, in order to ensure sufficient grounds for resolving civil cases, the Court can take some additional measures to collect evidence without any request from the litigant. Specifically, the Civil Procedure Code 2015 provides for the following methods for collecting evidence:
- Measures to solicit expertise when necessary (Clause 2, Article 102);
- Requesting agencies, organizations and individuals that are managing and keeping documents and evidence to supply documents and evidence to the Court when necessary (Clause 3, Article 106);
- Obtaining the litigant’s testimonies (Clause 1, Article 98);
- Obtaining the witness’s testimony (Clause 1, Article 99);
- Confrontation between litigants, between litigants and witnesses (Clause 1, Article 100);
- On-site examination and evaluation (Clause 1, Article 101);
- Soliciting expertise (Clause 2, Article 102);
- Asset valuation (Points b and c, Clause 3, Article 104);
- Entrusting to collect and verify documents and evidence (Article 105);
- Requesting agencies, organizations and individuals to provide documents and evidence (Clause 3, Article 106).