Burdens of Proof and Judicial Errors in Civil Litigation

Jeong-Yoo Kim

Korean Economic Review, 2021, vol. 37, 5-35

Abstract: This paper considers the effect of whether burden of proof is assigned to plaintiffs or defendants in tort claims on the defendant’s care-taking incentive under the possibility of judicial error. We argue that it is socially better to place burden of proof on the plaintiff if the proof costs of both parties are low and the evidence is very accurate, thus reducing the wasteful incentive for defendants to commit over-precaution. If the burden of proof is placed on the defendant, it exacerbates the defendant’s over-precaution due to an accident avoidance effect whereby the defendant is incentivized to take more care to avoid an accident, thereby saving evidence costs. We also discuss the sine qua non rule in the case ofnoisy evidence and reconfirm the accident-avoidance effect. This is compared to the result of Gómez (2002).

Keywords: Burden of Proof; Due Care; Negligence; Judicial Error; Sine Qua Non Rule (search for similar items in EconPapers)
JEL-codes: K13 (search for similar items in EconPapers)
Date: 2021
References: View references in EconPapers View complete reference list from CitEc
Citations: View citations in EconPapers (1)

Downloads: (external link)
http://keapaper.kea.ne.kr/RePEc/kea/keappr/KER-20210101-37-1-01.pdf (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:kea:keappr:ker-20210101-37-1-01

Access Statistics for this article

Korean Economic Review is currently edited by Kyung Hwan Baik

More articles in Korean Economic Review from Korean Economic Association Contact information at EDIRC.
Bibliographic data for series maintained by KEA ().