The subject of proof and the burden of proof in civil proceedings in the Anglo Saxon and continental legal systems of foreign countries

The legal regulation of the subject of proof and the distribution of the burden of proof in the civil procedural legislation of the Russian Federation and the CIS countries are similar, however, some differences do exist. The incomplete and incorrect determination of the circumstances of the subject of proof in the Russian Federation, the CIS countries is the basis for the reversal of judicial acts on appeal. The exception is the civil procedural legislation of the Republic of Tajikistan, according to which the incorrect determination of the circumstances of the subject of proof is the basis for the reversal of a judicial act in cassation. The civil procedural legislation of the Russian Federation and that of the CIS countries resonate in understanding the subject of proof as the circumstances important for due consideration and resolution of the dispute. The burden of proof is also regulated in the civil procedural legislation of the Russian Federation and that of the CIS countries. At the same time, there are peculiarities under the legislation of the Republic of Moldova and the Republic of Tajikistan. By virtue of the civil procedural legislation of Moldova and the Republic of Tajikistan, a party that has failed to prove certain facts in full has the right to submit a petition to the court demanding to hear the opposing party on these facts. By virtue of the civil procedural legislation of Armenia, the grounds for the exemption from proof are the facts of common knowledge, pre-judicially established facts. The recognized circumstances are not binding on the court under the legislation of Armenia. The CPC RB, the CPC RK, in addition to the grounds for the exemption from proof mentioned above, include the presumed facts. The CPC of the Republic of Moldova expands the specified list by adding the facts not denied by the other party. Only the CPC of the Russian Federation and the CPC of the Republic of Uzbekistan establish identical grounds for the exemption from proof.

The advantage of the procedural legislation of the Republic of Belarus in terms of regulating the subject of proof and the burden of proof lays in the fact that the legal category of "the subject of proof" is fixed in the current procedural legislation. Legal presumptions as grounds for the exemption from proof are established by the civil procedural legislation of the Republics of Belarus and Kazakhstan. However, the procedural legislation of foreign countries and of the CIS countries, including the Russian Federation, does not establish a general device for determining the subject of proof taking into account the type of substantive law applicable to disputed legal relations. In order to define the subject of proof in civil proceedings correctly, the classification of legal norms into absolutely definite and relatively definite ones is essentially important. Relatively definite norms are those which entitle the court to resolve the case taking into account specific circumstances. There are situational norms, distinguished among relatively definite legal norms, which provide for direct and elaborate regulation by an act of a law enforcement agency, depending on the circumstances of a particular situation. The fact that these norms are rather numerous in the domain of substantive law makes it difficult for the court to determine the subject of proof. As a general device for determining the subject of proof, it seems appropriate to establish a rule under which the court is obliged to determine the subject of proof based on the grounds for the claims and objections of the persons participating in a case and taking into account the content of the applicable rules of law. It seems necessary to enshrine the procedure for determining the subject of proof in the current law: "The court determines the facts of a law-making, law-changing, law-preventing, and law-terminating character that are essential for the consideration and resolution of a case". Law-making, law-changing, law-preventing and law-terminating facts belong, in character, to substantive law and are to be proven by parties in accordance with the evidentiary rule established by the norms of both procedural and substantive law, since the law of evidence is an intersectoral and complex institution of law. At the same time, the presence of facts which are to be determined separately in substantive law, as well as the occurrence of the sets of facts including a concretizing element, predetermine the development of a procedure for establishing the subject of proof taking into account the specific circumstances of a case.

Besides that, it should be noted that the procedural legislation does not specify the general procedure for the distribution of the burden of proof, nor does it contain a particular procedure (legal presumptions, procedural fictions and special rules for the distribution of the burden of proof in operation) for the division of the duties related to the burden of proof. Establishing the substantive facts sought by the court being a prerequisite to the resolution of a dispute, the parties in the case are obliged to prove the relevant facts precisely, therefore it seems appropriate to enshrine a detailed general regulation of the distribution of the burden of proof in the law together with the procedure by which specific rules for the distribution of the burden of proof come into play. Thus, some of legally significant circumstances in a case can be established with varying degrees of probability, which is in line with the principle of legal truth in civil proceedings.

References

1. Davtyan, Ani G. 2000. Civil procedural law of Germany. Moscow, Gorodets Publ. (In Russian)

2. Givel, Dide. 2013. "The sketch of proof in French civil law". Rossiiskii iuridicheskii zhurnal 2: 78-88. (In Russian)

3. Lazarev, Sergei V. 2018. Case management in civil proceedings abroad. Moscow, Norma Publ.; Infra-M Publ. (In Russian)

4. Medvedev, Igor' G. 2004. The written evidence in private law in Russia and France. St. Petersburg, Iuridicheskii tsentr Press. (In Russian)

5. Mirzoian, Mariia E. 2008. "The proof and evidence". Obshchie polozheniia grazhdanskogo protsessual'nogo prava Frantsii v Grazhdanskii protsess zarubezhnykh stran. Ed. by Ania G. Davtian, 128-143. Moscow, TK Velbi Publ.; Prospekt Publ. (In Russian)

6. Puchinsky, Vasilii K. 2008. Civil procedure of foreign countries. Moscow, Zertsalo Publ. (In Russian)

7. Reshetnikova, Irina V. 1997. The law of evidence in England and the USA. Yekaterinburg, Ural'skaia gosu- darstvennaia iuridicheskaia akademiia Publ. (In Russian)

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