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在我国食品药品违约之诉案件中,由谁对食品药品是否合格承担证明责任,实务上存在着截然不同的两种做法,一种做法是我国民法通说的具体体现,另一种则是受“规范说”影响的产物。我国民法通说将违约行为当作违约责任的构成要件,并认为应该由债权人对债务人存在违约行为承担证明责任;“规范说”则将违约行为的反面视作债权消灭的事由,进而认为应该由债务人对其已经履行合同义务(即不存在违约行为)承担证明责任。两者分歧的理论根源在于是否承认违约责任的独立性。有关违约行为的证明责任承担,应采纳我国民法通说的观点,舍弃“规范说”关于违约行为证明责任承担的观点。
In China’s case of drug and drug default cases, who takes on the burden of proving the compliance of food and drug products, there are two completely different practices in practice. One is the embodiment of China’s civil law, and the other is affected by “Specification ” affect the product. China’s civil lawsuit states that the breach of contract will be regarded as a component of the liability for breach of contract and that the creditor should bear the burden of proof for the debtor’s breach of contract. The “normative” will treat the opposite of the breach as the cause of extinguishment, The debtor should bear the burden of proof that he / she has fulfilled its contractual obligations (ie, there is no default). The theoretical basis for the differences between the two lies in whether or not to recognize the independence of liability for breach of contract. The burden of proof regarding the breach of contract should adopt the viewpoints of civil law in our country and discard the view that the liability of proof of breach of contract is “regulated”.