Distribution Of The Burden Of Proof In Private Lending Disputes

The burden of proof in private lending disputes, performs both theoretical andpractical, especially in the latter. In judicial practice, there are arguments about whatrules to apply and how to distribute the burden of proof. Even the connotation andfunction of the burden of proof are misunderstood. Based on the present situationof China, in the paper, the author will clarify the standard and the methods ofallocation of the burden of proof in order to try to improve the rules through theanalysis of the objective and subjective factors of the problem.At present, China’s legislation on the distribution of the burden of proof inprivate lending disputes is diverse, especially after the "2015Civil Procedure LawExplanation" was promulgated. The rules on distribution of burden of proof are moreauthoritative and detailed. It is of importance to coordinate between variousspecifications. In the judicial practice, the allocation of the burden of proof in privatelending tend to appear not unified, which leads to injustice as the phenomenon of"same cases, different sentences", and even the misunderstanding and misuse of theburden of proof, excessive emphasis on facts and truth, so that the burden of proofsystem failed to play its intrinsic value.In terms of the evidence, the private lending disputes appears commonly thatevidence insufficiency, evidence defects, proof difficulty, so that the essential factsare unknown frequently, which brings great difficult to the trial. The situations aboveare due to the imperfect civil substantive law rules, the legal concept of subjectivefactors, etc. Because of this, to distribute the burden of proof and artifact legal real tomake a judgment in private lending disputes have vital function and role. Theallocation of the burden of proof in private lending, at the same time, in judicialpractice and legislative work affected long time by entrenched concept of entityjustice. too much attention is paid to find out the objective truth. Trials often have ajudge on the basis of discretionary circumstances of distribution of burden of proof,in the legislation attempts to all the case facts into the category of essential fact,which make the burden of proof system designed far from the procedural justice and subjectively count against the trial. After the "2015Civil Procedure Law Explanation"was enacted, the authority accepted the "specification theory" as the distributionstandard of the burden of proof, therefore, it is necessary that we make a preliminarydiscussion about the distribution of the burden of proof in private lending disputesbased on the "specification theory". And we should aim at analysis of "specificationtheory" rationality, clarify the essential facts in private lending relationships, considerthe specific factors in allocation of the burden of proof.It is necessary to reform the burden of proof in the private lending disputessystem. In the first place, on the basis of the theory of "specification", to clear theessential facts which mainly includes facts of loan relationships, facts of maturity, andother general essential facts, etc.; Secondly, to unify the burden of proof allocation.,that is to balance the allocation of essential facts according to "specification theory",considering both parties on mastering evidence, vulnerable groups protection, in orderto formulate unified rules, reasonable distribution of burden of proof, and form aunified, authoritative legal norms. Finally, to improve the substantive law rules.Substantive law is the main basis of the allocation, and the organic combination ofsubstantive law and procedural law is the inevitable trend. From the perspective ofsubstantive law to establish and improve the distribution of the burden of proof inprivate lending dispute system, mainly lies in: first, to specific distribution of burdenof proof in "contract law". Second, to strictly regulate the relationship of privatelending, abandon the oral contract mode.