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The Burden Of Proof In The Lawsuit Of Private Lending

Posted on:2016-12-30Degree:MasterType:Thesis
Country:ChinaCandidate:D D ChenFull Text:PDF
GTID:2296330461962279Subject:The civil procedural law
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The crisis of 2008 put a huge amount of oscillation in China’s economy, the number of private lending cases are rising. The folk lending cases are sustaining a high operation and the subject is becoming a big and an increasingly prominent trend, which shows that it has brought a huge impact of active folk financing for our financial order and on the other side, to the economic and social life. The growing number of folk lending cases, which on one hand put a huge influence to the work of court trial and the enforcement process; on the other hand, the amount of problems which especially shows that the folk lending are not fundamentally solved. It’s only solving the folk lending problem properly that can maintain the social life harmonious and stability. Some of the folk lending cases are so complicated that is very difficult for finding the fact. The basic evidences to prove there is an real folk lending relationship are the statement of the parties and documentary evidences, and the documentary evidences include the IOU and transfer documents, it is very important to review and judge the relevant evidence in the judicial practice comprehensively and distributing the burden of proof for both sides fairly. The research method of this paper include comparison research method, case analyzing method and method of combining theory and practice together. The folk lending dispute case of this paper, Mr. Zhang sue Mr. Yi, which have gotten the following research conclusions, that is, through a comprehensive presentation of the case, summing up the focuses of controversy in the case, analyzing the evidences of the case, comparing the continental law system and the Britain and the US. law system, and combining the latest judicial interpretation and civil litigation of our country about the concept of the burden of proof. In this paper, the focuses of controversy of both sides are analyzed in detail, therefore, this paper put forward many perfect suggestions, which are trying to solve the private lending litigation of burden of proof and the related fact cognizance principles.The case which this paper studied is a folk lending dispute lawsuit by Mr. Zhang sue Mr. Yi, this case is very complicated and the facts finding are also very difficult. However, there are many injustices in this case. The structure of this paper is as follows.The first part is the introduction, including the analyses of the content of the case, the introduction of the case, and the case evidence and the facts to be proved. The case of the folk lending dispute Mr. Zhang case, which introduced the request of the parties, the court of first instance to identify facts, reasons and results in the first instance, and the second instance verdicts, the parties appeal, the second instance court as certain facts, reasons for judgment and the judgment results. In the part of analyzing the evidence, all the evidences are analyzed accurately.The second part is the analysis and evaluation of the focuses of dispute of this case. There are mainly two focuses of the dispute. One of them is whether there is a real debt relationship between Mr. Zhang and Mr. Yi, the other one is how to distribute the burden of proof in this case and after this while the facts are still unclear how the court should justify the case. By combining the relevant evidence and the existing laws and regulations, which draw the conclusion. First, there is not an real lending relationship between Mr. Zhang and Mr. Yi, Second, it is the responsibility for Zhang to assert the existence of the lending relationship with 200,000 RMB in cash, the court need to determine all the evidences of the case, Mr. Zhang should be regarded to have the burden of providing the proof, which is not sufficient and should bear the adverse consequences of the trial which may even lose the lawsuit.The third part of this paper is trying to prove that the related problems of responsibility of private lending in litigation interpretation. This part mainly introduced two aspects, the first one is to define the concept of the burden of proof, especially from the continental law system, the Britain and the US. Of the law system and our country’s legislation and judicial interpretation on the concept of burden of proof are compared. And then proof, including the subjective burden of proof of the parties, which is to prove its claims and liability, as well as the objective burden of proof.The fourth part of this paper put some forwards to improve the responsibility and the suggestions of finding the facts, which give some operational and constructive suggestions that the folk lending rules in the litigation. The first is a summary of the proceedings of the general rules of private lending parties allocate the burden of proof is mainly based on the legislative and judicial interpretations, combined with practical contract private lending contract drawn. The second is the distribution of the burden of proof for the case of private lending under the special circumstances of recommendations, including the leaders, borrowers bear the burden of proof of the case. The third is based on the complexity of the case of private lending is often the case, the facts found great difficulty of the reasons put forward the general principles of fact-finding.The fourth is for the parties to advocate finds cash loan proposed rules.
Keywords/Search Tags:Private Lending Litigation, the Burden of Proof, Subjective Burden of Proof, Objective Burden of Proof, Perfect
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