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A Study On The Burden Of Proof In Private Lending

Posted on:2018-01-04Degree:MasterType:Thesis
Country:ChinaCandidate:N Y YangFull Text:PDF
GTID:2346330518998347Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Private lending with its own richness,diversity and integrity,for the public entrepreneurship,innovation and provide great support and help.But from an objective point of view,China’s financial and legal system is not perfect,with the gradual increase in the risk of private lending,highlighting the risks,making China’s current private lending chaos.The reaction in the judicial level,in recent years led to a surge in the number of folk loan disputes,the loan amount increased sharply,the types of disputes,change rapidly on suspicion of illegal fund-raising fraud litigation,and other illegal and criminal activities are more prominent,enforce the closing rate is low.In the face of the current situation,the author realized that the rules of burden of proof allocation in private lending disputes are not perfect.Therefore,the author mainly focuses on the research of the burden of proof in the private lending disputes,hoping to benefit the theoretical research and judicial practice of private lending.The first chapter is the introduction,summarizes the related situation of this paper,mainly including the background and significance of the study,literature review,the main research contents and methods.The second chapter is the summary of the burden of proof and the distribution model,which provides a theoretical basis for the allocation of the burden of proof in the private lending disputes.This chapter through the basic theory of civil litigation of burden of proof finishing,summarizes our current form of "who advocate who proof" is the general rule,the burden of proof and the judge’s discretion for the allocation of the burden of proof mode exception,and through the deep analysis of the distribution rule of our country to find its shortcomings the general rule,the shortcomings mainly in: first,the provisions statement is not rigorous,semantic fuzziness;second,unresolved facts to be proved by the who advocates the problem;third,no clear explanation of the connotation of the burden of proof.This chapter focuses on the common law and civil law of burden of proof distribution patterns are summed up and summarized,and the methods of distribution of burden of proof in our country are analyzed and compared,so as to put forward our country should learn from the allocation of the burden of proof in the two law systems theory,advocated the rules of burden of proof and diversification,legal relationship for specific types of formulation of rules of burden of proof the case,to achieve fairness and justice.The third chapter is the particularity of China’s private lending disputes and the distribution of the burden of proof.With the surge in the number of private lending disputes,a huge amount of money,executive rulings rate is low;the consumption of private lending and commercial borrowing coexist;the evidence in the case,check the facts to clear off the view;cross,criminal and civil litigation and other prominent phenomenon of false particularity,has constituted the specific legal relation types and characteristics of bright the.However,the distribution of burden of proof in China’s private lending disputes is a multi standard and the use of the distribution is not uniform,the right of discretion has not been properly used,highlighting the lag of legislation.The fourth chapter is the suggestions to improve the burden of proof in civil disputes.Based on the theory of burden of proof of the sort of private lending disputes in our country with the burden of proof practice,the author proposes: to establish a unified proof responsibility distribution mechanism of private lending,to one of the spouses signed loan,shall be deemed as one party’s personal debt,but there is evidence that except for a couple of common debt;two.The main responsibility of the handwriting,and clearly distinguish between the situation,if the defendant refuses to provide the legal responsibility of handwriting identification contrast sample;three,when the balance of the allocation of burden of proof about the evidence of the case,prudent judgment,rational use of the discretion of the judge;four,norms of substantive law,the rule of proof writing "contract law",the canonical form,and provide the loan loan contract performance.Legal provisions on the burden of proof of private lending is not perfect led to the chaos of private lending disputes.This paper puts forward some suggestions for the defects of the rules of burden of proof in China’s private lending.
Keywords/Search Tags:Private lending, Distribution of burden of proof, perfect
PDF Full Text Request
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