Judge-making rules of the burden of proof
The article deals with the question whether the judge is allowed to depart from the basic rule or specific rules of dividing the burden of proof. The reason for such a procedure can't be justified by the unique circumstances of some/a particular case. However, the judge is not bound to use these rules in the case of a gap in the law. Typically, it will be a situation where the law contains a specific rule of dividing the burden of proof for a particular situation, but without any rational reason, the same rule is not applied to another similar situation. There may be other situations where the literal wording of the law is in contradiction to the teleological background of the civil procedure code of general legal principles (for example the case of impossibility to prove a certain fact). Nevertheless, the reversal of the burden of proof should not occur where the situation can be satisfactorily resolved by other procedural tools, for example by free evaluation of evidence.
Právník, redakce, Ústav státu a práva AV ČR, v.v.i., Národní 18, 116 00 Praha 1, Czech Republic
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