The standard of proof refers to the degree of evidence necessary to establish proof in a court proceeding. According to Articles 108 and 109 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释), the standards of proof in China’s civil litigation can be categorized into two groups: most to-be-proved facts are subject to the standard of “preponderance of the evidence”(高度可能性), and some special to-be-proved facts subject to the standard of “beyond a reasonable doubt” (排除合理怀疑).
I. The “preponderance of the evidence” standard
As the name implies, “preponderance” refers to the fact that the existing evidence has shown that the fact to be proven is more probable than not. “Preponderance” does not require the evidence to reach the extent of beyond a reasonable doubt, and some judges describe it as reaching the possibility of 75%.[1]
Given the different circumstances in each case, as well as the different personal experience and knowledge of each judge, the Chinese law does not specifically provide for “preponderance”, but gives the judge the discretion to make judgment therefor. In practice, some judges think that “preponderance” can be further divided into three levels: highest possibility, higher possibility, and high possibility. [2] It can be seen that “preponderance” is a rather flexible standard, and judges need to determine whether the evidence meets the standard of proof based on the law and their personal experience. [3]
II. The “beyond a reasonable doubt” standard
Some special facts to be proved need to meet the standard of “beyond a reasonable doubt” only applicable in criminal cases. [4] “Beyond a reasonable doubt”, obviously more demanding than “preponderance”, mainly applies to the following to-be-proved facts:
1. Fraud, coercion, and malicious collusion: these are the statutory reasons for the parties to claim rescission or invalidation of the contract. Chinese laws increase the standards of proof for these matters for two reasons: the subjective psychological state needs to be proved by sufficient evidence; to avoid the contract effectiveness being easily shaken and to enhance the stability and security of the transaction as much as possible.
2. Oral will: an oral will is made by the testator orally in a critical situation. Once there is a lawsuit about the authenticity of an oral will, it often involves many unknown related problems, such as the mental state of the testator, the integrity of the witness, and whether the witness has a stake in the heir. Therefore, the statutory standard of proof is relatively high.
3. Gift: gift (especially the gift with high value) may involve complex reasons, such as repayment of gambling debt, gift due to extramarital affairs, or other conditional gifts. Raising the standard of proof can avoid neglecting the hidden doubts and reduce the possibility of misjudgment.
[1] 阎巍.对我国民事诉讼证明标准的再审视[J].人民司法(应用),2016(31):90-96.
[2] 童建荣,阳桂凤.盖然性原则在事实真伪不明案件中的运用[J].人民司法,2015(10):95-97.
[3] 刘国如.民事审判论辩语境下经验法则运用的本质与机制[J].人民司法(应用),2017(10):64-69.
[4] 《刑事诉讼法》第五十五条：对一切案件的判处都要重证据,重调查研究,不轻信口供。只有被告人供述,没有其他证据的,不能认定被告人有罪和处以刑罚;没有被告人供述,证据确实、充分的,可以认定被告人有罪和处以刑罚。证据确实、充分,应当符合以下条件:(一)定罪量刑的事实都有证据证明;(二)据以定案的证据均经法定程序查证属实;(三)综合全案证据,对所认定事实已排除合理怀疑。
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Contributors: Chenyang Zhang 张辰扬 , Ran Ren 任冉
