| In the domain of civil procedure that belongs to the adversary proceedings, based on the jurisprudence of the burden of proposition, the party should raise legal elementary facts to the court actively. Only when the party’s proposals correspond with the requirement of specification, can they be taken on as proper proposals, and only then has the party fulfilled his duty of specification. The specification of proposals requires the party to state specifically, and meanwhile forbids discretionary or aleatory statements. How the requirement of specification was established in Germany and Japan are different. In Germany, it was established by the precedents in the period of Empire Court and Federal Court. While in Japan, it’s generally considered that §258 (1) of its former Civil Procedure Code and §180 (1) of its current one declare or imply the request that the party’s proposals should be specific. The significance or theoretical foundations of the specification of proposals are to secure the trial interest of the courts, the defensive interest of the other party, and also the due interest of a third party as a means of proof. In order to avoid prejudication and enable the court to decide effectively whether the party’s proposals need evidence investigation or not, proposals should be specific enough to enable the court to decide whether they have enough importance for judgment. As the distribution of the burden of proposition don’t always accord with the party’s ability of proposition, in the cases when the main evidences are under one party’s control, we should assuage the requirement of specification and permit the other party to state abstractly, so as to strive for substantial justice. To ensure our courts to investigate the evidence convergently and substantially, to protect the defensive interest of the party who don’t bear the burden of proof, to limit the issues between the parties effectively, and to avoid litigation delay, our Civil Procedure Law should take examples from the precedents and theories about the specification of proposals in Germany and Japan, and stipulate clearly that the party undertakes the obligation to make his proposals specific. |
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