THE BURDEN OF PROOF: DEFINITION AND IMPORTANCE IN PROCEEDINGS

The fundamental term that must first be explained in this chapter is “burden of proof ”. The term is a borrowing from the German legal terminology, not only differing from the Latin term onus probandi, but also, particularly, from its statutory definition adopted in Article 6 of the Polish Civil Code, which mentions the burden of proving a fact. This term [i.e. burden of proof], is easier to communicate. It is undoubtedly a shortcut (simplification) but, since people have used it so commonly in legal language for such a long time, “it became a statutory term in the end … Thus, it is not a mistake to use it”.

In the theory of law, the burden of proof is associated with the application of the law. The application of the law is defined as “making binding and specific legal decisions by a competent state authority pursuant to the generally binding legal norms”. On the other hand, Stawecki and Winczorek, combining the application of the law with burden of proof, indicate that:

These authors associate the burden of proof with the second stage, that is, proving the occurrence of facts. They argue that, “as a rule, proving a fact to the authorities and providing its description is a responsibility of the person (e.g. prosecution, claimant) who believes that specific legal effects result from (are connected with) such a fact. The rule indicates who is bound to have the so-called burden of proof (onus probandi)”. The principle of burden of proof is expressed by the Latin maxim ei incumbit probatio qui dicit, non ei qui negat (the burden of the proof lies upon him who affirms, not him who denies). However, the rule is subject to certain modifications and it cannot be deemed binding throughout the legal system without reservations and exceptions.