The Theory of Legal Requirement Classification and the Burden of Proof for Provisos (Part 1)
The theory of legal requirement classification is the prevailing theory regarding the distribution of the burden of proof (burden of evidence, burden of demonstration), which concerns which party bears the burden of proof.
Under the theory of legal requirement classification, as a general rule, based on the requirements stipulated in substantive law, each party bears the burden of proof for the operative facts of the legal provisions that determine the occurrence of legal effects favorable to themselves.
Simply put, the party for whom favorable legal effects arise or are obtained when a certain fact is recognized bears the burden of proof for that certain fact is what it means.
Specifically, the theory of legal requirement classification is considered as follows.
1. Right-founding provisions (stipulating the creation of a right) operative facts: the party asserting the right bears the burden of proof (e.g., formation of a sales contract (Civil Code Article 555)). 2.
Right-extinguishing provisions (stipulating the extinction of a once-created legal relationship) operative facts: the party asserting the extinction of the right (the denying party) bears the burden of proof (e.g., performance of an obligation (Civil Code Article 474), rescission of a contract (Civil Code Article 4, Paragraph 1; Article 96)). 3.
Right-impairing provisions (stipulating requirements that suppress the occurrence of legal effects based on right-founding provisions, etc., from the beginning) operative facts: the party contesting the occurrence of those legal effects bears the burden of proof (e.g., fictitious declaration of intention (Civil Code Article 94), mistake (Civil Code Article 95)). 4. Right-obstructing provisions
(stipulating requirements that obstruct the exercise of a right created based on right-founding provisions) operative facts: the party attempting to obstruct that right bears the burden of proof (e.g., lien (Civil Code Article 295), defense of simultaneous performance (Civil Code Article 533)).
Here, since a "proviso" in statutes or contracts is considered a right-obstructing provision, the burden of proof for it is borne by the party opposite to the one bearing the burden of proof for the main clause.
To the extent I am aware, statutes where it is easy to understand which party bears the burden of proof for this proviso include Article 3 of the Product Liability Act and Article 3 of the Act on Securing Compensation for Automobile Accidents.
・Product Liability Act Article 3 Product Liability
(Product Liability) Article 3: A manufacturer, etc. shall be liable for damages caused by a defect in a delivered product that they manufactured, processed, imported, or on which they indicated their name, etc., as referred to in item (ii) or (iii) of paragraph (3) of the preceding Article, if that defect has infringed upon the life, body, or property of another person.
However, this does not apply if the damage has occurred only to the product itself.
・Act on Securing Compensation for Automobile Accidents Article 3 Automobile Liability
(Automobile Liability) Article 3: A person who operates an automobile for their own benefit shall be liable for damages caused by the operation of that automobile if it has harmed the life or body of another person.
However, this does not apply if the person proves that they and the driver exercised due care regarding the operation of the automobile, that there was intent or negligence on the part of the victim or a third party other than the driver, and that there was no structural defect or functional failure in the automobile.
・Patent Act Article 29-2
Article 29-2: Where an invention claimed in a patent application is identical to an invention or device described in the specification, scope of claims, or drawings (in the case of a foreign language written application under Article 36-2(2), the foreign language document under Article 36-2(1)) initially attached to the request of another patent application or utility model registration application filed prior to the filing date of the patent application, and which, after the filing of the patent application, was published in a patent gazette (hereinafter referred to as "patent gazette") under Article 66(3) that states the matters listed in each item of that paragraph, or was published as an application, or for which a utility model gazette (hereinafter referred to as "utility model gazette") under Article 14(3) of the Utility Model Act (Act No. 123 of 1959) that states the matters listed in each item of that paragraph was issued (excluding an invention or device made by the same person as the inventor of the invention claimed in the patent application), the invention shall not be patentable, notwithstanding the provisions of paragraph (1) of the preceding Article. However, this does not apply if the applicant of the patent application and the applicant of the other patent application or utility model registration application are the same person at the time of filing the patent application.
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