In the law suit, the rule of torts act that a plaintiff is responsible for proving a defendant’s fault is a severe burden on the plaintiff if the plaintiff does not know the exact act of damages, especially if the act is related to highly specialized knowledge of the defendant. In this case, the plaintiff can hardly guess whether the defendant has any obligation to state or where to seek a breach of duty from a series of defendant’s actions.
In order to save the difficulties of the lawsuits of these plaintiffs, Korean procedural law has been estimating the defendant’ negligence for a long time for the benefit of plaintiff’s burden of proof. If proving certain facts or results, plaintiffs have committed their burden of proof with it, and thereafter, the so-called “res ipsa loquitur” rule in which the burden of proof is transferred to the defendant, has been applied and tends to be widely accepted in the field of medical accidents suit. On the other hand, in the United States, it plays an important role in alleviating the burden of proof of the plaintiffs, such as the ‘res ipsa loquitur.’ If defendant’s negligence is not found, it can be easily found that damages occur in a situation where it is unlikely that such a case will occur. We may think that there is a fault with the defendant and judges the defendant’s fault based on the occurrence of damages. In this situation, the plaintiff is free from the burden of proving the strict fault that the defendant should designate and act on the fault. As a plaintiff, it is only necessary to prove the occurrence of damages. The presumption of our inaccuracy and the ‘law of error estimation’ in the English law are not exactly the same in their essence and concrete application. At the same time, however, it has the function of separating the activities with certain negligence from the framework of traditional fault responsibility, and putting them into the framework of virtually no responsibility.
It is the plaintiffs’ responsibility to bear the burden of proof in the United States, where a widespread evidence collection procedure is adopted and, in principle, the proof is preponderance of evidence is considered sufficient. However, it is particularly problematic in cases of contemporary litigation such as pollution lawsuits, product liability litigation, medical malpractice lawsuits, etc. Therefore, in the United States, the law of reducing burden of proof has been developed in the case law, and the representative one is the theory of prima facie case of ‘res ipsa loquitur.’ Thus, in the United States, the res ipsa loquitur theory is widely used in court practice as a legal principle to reduce the burden of proof of plaintiffs in modern cases. However, there is still controversy about the legal nature of the United States and its subsidiary in the United Kingdom, and analysis from the legal and economic point of view is being attempted. Therefore, this study will examine the theory of res ipsa loquitur.
Many US precedents allow us to take advantage of the law of res ipsa loquitur. In the United States, there seems to be based on the idea that the burden of proof is centered on the responsibility of submitting evidence, but from the perspective of minimizing the cost of misrepresentation of law and economics or the cost of relative evidence. This is a very interesting debate.