| Research Abstract |
In civil procedure, it must be clarified what facts the parties dispute about. In the light of that purpose, how concretely does the plainitiff need to explain the facts his or her claims is basesd on? May the defendant merely such facts without any concrete statement?
If they are required concretely to explain or state such facts, it would be an essential problem what effect non-concreteness of the explanation or statement would have from the legal point of view. And when one party has a burden of proof or persuation, but does not have access to necessary information, it would be desiable that, under proper conditions, the other party who has the information should take the responsability for co-operation with the one party in explaining facts and producing evidences.
Since the other party, however, does not originally have a burden of persuation and producing facts and evidences such as would be disadvantageous to himself or herself, it would be a very important problem, under what con
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ditions he or she should take the above responsibility.
I have tried in this research to solve the last problem, surveying the developments of German and Japanese precedents. First, I have followed German precedents which have forced and developed the doctrine imposing the responsibility of producing facts and evidences on the party who has no burden of proof or persuation, and analyzed German scholars' theories relating to theses precedents. Second, I have analyzed the content of the responsibility of stating facts, which has been imposed on the same party as above in practice of Japanese environment or taxation litigation.
Finally, I have concluded that, if
(1) one party who has a burden of proof or persuation, is out of affairs ; and
(2) he or she has no possibility of explaining facts for himself or herself ; but
(3) the other party can easily explan the facts ; and
(4) he or she can be expected to do so from the viewpoint of circumstances concerned, the other party should be responsibility by bona-fide or good faith rule for stating facts concretely and producing rerlevant, eridences, in Japanese civil procedure, too. Less
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