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Project

The alleviation of the burden of proof in tort law.

Article 1315 of the Belgian Code of Civil Law and Article 870 of the Belgian Code of Civil Procedure play an important part in the determination of the factual circumstances of a case. These legal provisions determine which party carries the burden of proof. If a judge still has his doubts about the truth behind a factual allegation at the end of a legal procedure, he will decide against the party carrying the burden of proof. However, one can imagine situations in which such party encounters difficulties to produce the required evidence, while that party is not to blame for these difficulties. Such situations lead to a state of evidentiary deficiency. Under Belgian law, evidentiary deficiency is a relatively unknown concept that only occasionally makes its appearance in case law and legal scholarship. As far as this concept is concerned, the Belgian legal system stands in stark contrast to other legal systems (e.g. Germany, France, the Netherlands, Austria and Switzerland), in which the concept of evidentiary deficiency is more common and even appears in the case law of the supreme court. While evidentiary deficiency can arise in any area of the law, tort law constitutes an especially interesting field of study (inter alia because of the sudden nature of a loss caused by a tortious act and because of the particularity of facts that underlie the assessment of tort liability).

The main research question of this PhD thesis is how a Belgian judge should deal with problems of evidentiary deficiency that arise in a tort law context. Considering this question, the study identifies different scenarios leading to evidentiary deficiency (information deficit, evidence asymmetry, situational impossibility to provide evidence, inherent evidence uncertainty). Furthermore, the study examines whether evidentiary deficiency really is a problem from a legal perspective. Subsequently, the research provides for an analysis of the classic evidentiary mechanisms that Belgian judges currently have at their disposal to alleviate the burden of proof. These mechanisms are the duties to collaborate on the administration of evidence, investigative measures and factual presumptions. Based on insights acquired through a comparative law study, the research seeks to reinforce the substance of these mechanisms. Finally, the study discusses two alternative evidentiary mechanisms that do not yet have a firm status under Belgian law: the lowering of the standard of proof and the reversal of the burden of proof. After a conceptualization, delineation and overview of the state of affairs, the study formulates for both mechanisms a proposal for recognition and implementation.

 

Date:1 Jan 2013 →  30 Sep 2017
Keywords:Civil justice, Evidence
Disciplines:Law, Other law and legal studies
Project type:PhD project