Judicial Approaches to the Standard of Proof in Civil Litigation: Contrasts Between Civil Law and Common Law Traditions

Judicial Approaches to the Standard of Proof in Civil Litigation: Contrasts Between Civil Law and Common Law Traditions

A notable distinction in civil litigation emerges when comparing how courts in civil law versus common law jurisdictions view the standard of proof.

For example, in Korean civil proceedings, merely suggesting that a particular fact might be true is insufficient. Instead, courts demand a high level of probability—one that leaves virtually no room for reasonable doubt. By contrast, U.S. courts apply the “preponderance of evidence” standard, which requires that the evidence backing a specific claim outweigh any evidence for the opposing position. Put simply, the party must show that its claim is more likely true than not.

In criminal proceedings, however, the standard of proof is far more stringent. In the United States, courts use the “beyond a reasonable doubt” standard in criminal cases, which closely mirrors the threshold Korean courts impose in civil litigation.

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Why Do These Differences Arise?

I propose that these variations reflect the distinct levels of judicial involvement in evidence-gathering and investigative processes across legal systems. To explore this hypothesis, I surveyed a broad range of domestic and international academic studies.

In the United States, gaining access to trial court rulings—even from lower courts—is relatively straightforward, enabling researchers to analyze judicial perspectives and case precedents. In Korea, however, only Supreme Court decisions are generally available to the public. This limited access forces researchers to depend heavily on existing scholarship by those with privileged or broader access to court rulings. The upshot is a research process that demands more time, effort, and reliance on secondary sources.

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Conclusion

Given these challenges, a deeper, more comprehensive investigation is warranted to clarify how these legal frameworks diverge. By examining the extent to which courts engage in evidence collection and analysis, and by delving into how those roles vary between civil law and common law traditions, researchers may ultimately uncover the underlying factors that drive differing standards of proof.