미국증거법상 증명책임과 추정

The burden of proof in evidence law in America commonly encompassestwo kind of burden. One is the burden of producing evidence and the second is the burden of persuasion. The burden of producing evidence means the liability to an adverse ruling without producing evidence.The burden of persuasion means the burden even all of the evidence is introduced the trier of fact could not decide the truth of fact and that the issue to be decided against the party. The burden of producing evidence may shift to adversary when the pleader discharges its initial duty. But the burden of persuasion does not shift from the beginning to the end of the case. What are to beconsidered to allocate the burden of proof? One of the popular theory is the three Ps. That is, policy, probability, and possession of proof are the most important factors to be considered to allocate the burden of proof. Sometimes fairness is added to the consideration. The level of satisfying the burden varies depends upon the case. In most civil casesby a preponderance of evidence is enough. But in certain exceptional cases clear and convincing evidence is required. In criminal casesthe highest formula of beyond reasonable doubt is applied. Generally a presumption means the rule of law when the basic fact is established the presumed fact should be acknowledged unless and until the rebutting evidence is produced.About the effect of presumption two great theories are developed. One is the Thayer theory, the “bursting bubble”theory and the other is the Morgan theory. The “bursting bubble” theory explains that the only effect of a presumption is to shift the burdenof producing evidence with regard to presumed fact. If evidence is produced by the adversary, the presumption is spent and disappears. By the Morgan theory a presumption maintainsstronger effect to the presumed fact that the burden of persuasion shifts to the adversary party. In Korea, burden of proof generally means two kind of burden, the objective burden of proof and the subjective burden of proof. I think the objective burden of proof is applied to the burden of persuasion and the subjective burden of proof is applied to the burden of producing evidence. About the level of proofhigher probability is required in our lawthan the standard of preponderance of evidence in America. Because most scholars says that the presumption shifts the objective burden of proof to the adversary, the general theory on the effect of presumption in Korea applied to the Morgan theory in America.