Research On Burden Of Proof Of Private Lending Disputes

Private lending has a long history,is the earliest folk financial activities.Based on the present situation in the construction of socialism with Chinese characteristics,the folk lending in the folk financial activities of higher,a series of disputes caused by private lending is also destroy our country one of the main factors to an enduring social order.Private lending to some extent,although can accelerate the circulation of funds,promote the economic development,but its latent risk will severely impact the existing financial system,disrupt the normal order of market transactions.In-depth analysis of the status quo,we can see: the lack of sound financial legal system,so that the private lending market chaos,lack of market regulatory functions,unable to carry on the effective guidance,which is the main factor that cause the private lending risk high.Compared with other types of financing,private lending between borrowing more for friends and relatives,friends,etc.,and most of this part of the legal consciousness,so that the private lending dispute is used to take an extreme way.In contrast,private lending related legislation mechanism,private lending judicial practice lack of guidance,normative and maneuverability,the fact that qualitative,case,applicable law and punishment are significant problems in the people cross.Nowadays,all levels of court cases,the highest proportion of folk loan disputes,from the perspective of judicial ruling,borrowing disputes often face proof is not enough and the risk of losing,this also shows that the present legal norms and serious information asymmetry problem between judicial work.Private lending disputes once in court,the judge is hard to judge the defendant and the plaintiff responsibility division between the two sides,the two sides to provide evidence of the thing,therefore,cases in the process of the award,mostly adhere to the principle of \ "who advocates,who proof\",this principle is derived from the ancient Roman law at the earliest.Commonly used in the process of litigation proof principle,when using this principle,a judge should be according to the case facts prove standards and actual proof responsibility of distribution of evidential ability between parties.China's supreme people's court passed on the private lending cases provisions on some issues of applicable law,the regulation on regulated private lending activities,from two aspects of subject,civil action to define the legitimacy of private lending activities.The decision by a certain extent,solve the problem of distribution of evidential burden,but not in private borrowing disputes to refine the fact that the distribution of burden of proof,lead to the judge has a different understanding on the distribution of burden of proof,caused the phenomenon of different connection with the sentence,but also fuelling speculation,serious damage to the judicial authority,and the specific standards for the allocation of burden of proof,can be raised strong parties on the predictability of the result of distribution of evidential burden,avoid caused by allocation standard not unified doubting the judgement by the parties.Our country belongs to the statute law,emphasizes the unity and stability of the method.If the parties to a case to judge due to objective reasons can not provide favorable evidence leads to the case facts apocryphal as an excuse to not investigate the facts and the truth,escape the judgment of the bear responsibility,and even regardless of the specific conditions of case,cannot be made in accordance with,the welter of judgment,directly caused by the parties to the disappointment of judges and defiance of the law authority,resulting in the people's court judges the credibility of a big discount.In order to protect the legitimate rights and interests of both borrowers and lenders,trying to close to the truth,to make a fair trial,for the common folk lending the dispute after the fact to form a unified allocation of burden of proof,to ensure the consistency and predictability of court,but the folk lending complicated cases is often the case,different situation,this article will to our country folk lending disputes to be sorted out the fact that the summary,found that the characteristics of this kind of case to be proved,and then by analyzing the problem of folk lending the allocation of burden of proof in our country,puts forward some Suggestions for the perfection of related,trying to find resolve the folk lending disputes the burden of proof distribution is not uniform.This paper has carried out demonstration from three parts:The first part,the author first describes the concept of burden of proof,the function and nature of a detailed overview of;Second on the development of the burden of proof in China roughly comb;Had better,the author based on the present situation in our country folk lending disputes,combined with the existing content of distribution of evidential burden in our country,on the characteristics of folk lending disputes to the fact that analysis.The second part,in the context of the civil procedure law to the facts,on the basis of detailed introduction to the fact of the civil procedure law,and in view of theThe third part,through to the fact that the private lending disputes type,sums up my existing rules of burden of proof,and aiming at the problems of insufficient and proposed improvements.