| Through the examination of civil procedure theories and court decisions that apply articles 78 and 79 of the Tort Liability Law, this article comes to the following three conclusions. Firstly, there is no "defect in allocation of burden of proof", as claimed by Dr. Yuan Zhonghua, in Article 79 of Tort Liability Law. Therefore the application of Article 79 would not be obstructed by the so-claimed defect. Secondly, the norm theory, which is the conventional theory of "burden of proof", does not reject interpretative approaches other than literal interpretation. Thirdly, "the cause of action-defense-counter defense" interpretative approach is not in conflict with the norm theory. On the contrary, it is Dr. Yuan's proposal of burden of proof that runs counter to the legislative purpose of Article 79. The reason that the application of Article 79 in court cases sometimes fails to achieve the goal set forth by the legislator is neither a defect in the legislation, nor the failure of conventional burden of proof theory, but rather the failure by the judges to thoroughly understand the text and structure of the legislation and to find the proper allocation of burden of proof and the right sequence to apply the clauses. It is the incorrect application of norm theory, rather than the failure of the norm theory, that leads to the problem. |
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