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The Study On The Burden Of Proof Of The "Single Evidence" Cases In Private Lending Litigation

Posted on:2018-10-13Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y LiFull Text:PDF
GTID:2416330515486508Subject:Procedural Law
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The "solitary evidence" case in the civil borrowing disputes is,plaintiff files a private lending litigation with the sole evidence of transfer voucher or the receipt for a loan without other evidence.This kind of case is common but difficult to deal with.The biggest problem in dealing with such cases is the fact that the main factum probandum in this kind of case is always in the state that whether it is true or false is not clear in the end of the trial.On the basis of analyzing the general principle of the distribution of the burden of proof,this paper concludes the judicial practice of proving the distribution of burden of proof in the case of "solitary evidence" in China's civil borrowing disputes,and sums up the four different treatment views about the distribution of the burden of proof when dealing with cases in that the plaintiff only have the sole evidence of transfer voucher.Then considers the problems of the distribution of burden of proof in the cases that the plaintiff only have the receipt for a loan,and finally extracts the three treatment views which aimed to the defandants' three arguments in courts.The provisions of Article 15,Article 16 and Article 17 in the "Private Lending Rules" which was promulgated by the Supreme People's Court on August 6,2015,stipulating specific provisions on the liability of the above-mentioned private loan dispute.This paper analyzes the fallacies of the rules of burden of proof in it by focusing on Article 15,Article 16 and Article 17 of the "Private Lending Rules",and puts forward amendments to the problems.In addition to the introduction,this paper is divided into four chapters,as follows:In the first chapter,from the perspective of comparative law research,the general principle of the distribution of burden of proof is discussed.This paper discusses the theory of the distribution of burden of proof in Germany,Japan and the United States,and analyzes the similarities and differences between the two legal systems on the theory of the distribution of burden of proof.The provisions of Article 91 of the "Judicial interpretation of the civil procedure law of the People's Republic of China" in our country are in fact the general provisions on the distribution of the burden of proof on the basis of the basic theory of "normative".In the second chapter,from the perspective of China's judicial practice,the paper analyzes the opinions of the courts in our country about the distribution of the burden of proof of "solitary evidence" case in civil borrowing disputes.In the cases of civilborrowing disputes,the two most common types of evidence are party statements anddocumentary evidence.The difficulty of recognizing the facts is the biggest problems inthe "solitary evidence" cases.On the basis of this understanding,this paper sums up thefour different views on the distribution of burden of proof in local courts when dealingwith only having the delivery of evidence and no creditor's certificate in private lendingdisputes and finally extracts the three types of views in local courts,which based on the defendant's three kinds of arguments.The third chapter is about the the problem of the distribution of the burden of proof when only the creditor's certificate is delivered.The rules of the distribution of burden of proof of Article 17 of the "Private Lending Rules" are contrary to the general principle of the distribution of the burden of proof,improperly reduces the proof of the facts of the borrowing,confuses the denial and defense of the reasons,and misinterprets the relationship between the card and the counter-Resulting in improper distribution of the burden of proof,it should be amended to the clause.The fourth chapter is about the the problem of the distribution of the burden of proof when only having the the fact of loan.The provisions of Article 15,paragraph 1 in the"Private Lending Rules" confuses the denial and defense of the grounds of reason,resulting in a contradictory distribution of the burden of proof on the same requirement;The provisions of Article 16,paragraph 1,in the "Private Lending Rules"defies The function of the defense,which unreasonably increased the burden of proof of the plaintiff;The provisions of Article 16,paragraph 2 in the "Private Lending Rules"confuses the denial and defense of the reasons.Therefore,The provisions of Article 15 and Article 16 in the "Private Lending Rules" should be amended.
Keywords/Search Tags:private lending, "solitary evidence", the distribution of burden of proof, proof of standards, defense, denial containing reasons
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