To Discus On Restructing The Rules Of Finding Facts For The Cases Of Private Lending

Nowadays, the private lending has its own characteristic, such as debtor and creditor become non-natural person which exist in character loan mostly, formal and informal contract, the money handed over by transfer accounts, especially the reasons which are hided behind the cases of private lending give the difficulties to the judges whom want the settlement of disputes or cases closed. Besides, any judgment made by the judges would have subjective cognition and experience, which will bring embarrassing to different codefendant. However, in our current civil procedural law, judges and litigants take the same action in investigation of evidence, which is one of the reasons that the judgment can not convince the people.This article starts the research from collecting typical private cases, concludes the common and specialties in private cases, analyses private case’s components, to define the basement of parties rights and duties in private cases and the object of finding facts which need to put to the proof. Analyses the rules of finding fact of our civil procedure law which are carrying out, such as the rule of Proof limitation in the stage of evidence collection, the rule of Admission in the stage of certification, the rule of The free heart certificate in the stage of certification etc... I have realized that the rule of finding fact is the generalized law of proof by analyses, which has tool’s nature for find out the case’s truth.In the cases of private lending, the tool’s user are the judges and parties, the use of object is kinds of proof material, even the fact of cases which are difficult to find out, the use of time is from the beginning of legal action which is started by the accusers to the end of argument of court, the use of method is definitely and setting in advance.The current rules of finding facts of private lending which are too principal to lack of operation is the fact without argument in judicial practice. It begins to improve the rules of finding fact, such as Zhejiang higher people’s court has laid down "Directive opinions on hearing the cases of private lending of Zhejiang higher people’s court". It replenishes and refines the rules of finding fact from the aspect of the jurisdiction of private lending, the examination of the litigation subject qualification, the examination of law relationship, the evidence collection, the distribution of burden of proof, and the presumption of fact, which makes the rules of facts better, and become more operation.This article refers to the theories of civil lawsuit of two law systems, such as the theory of the litigation in Japan and German, America’s discovery course, Britain’s "The protocol system before litigation", France’s "Documentary evidence priority principle" and German’s "the high degree of Probability theory to prove", to restructure the rule of finding fact of private lending for judicial practice. The rules of finding facts reconstructed by this article are settled for the First Instance procedure, including the rules of preparation before court, court testimony and the court checks.