On Distribution Of Burden Of Proof In China's Private Lending Litigation

In recent years,our country folk lending for its diversity,low cost,and the advantages of high efficiency for the masses entrepreneurship,innovation provides an important sources of finance,the public entrepreneurship and innovation become the new engine for China's economic development,the development of private lending activities also in full swing,but because our country folk lending laws and regulations system is not perfect,the risk is increasingly growing,hazard increasingly prominent,and caused the folk lending,a mess of the resulting more and more private lending disputes,according to a 2019 report on the work of the supreme people's court,according to a 2018 concluded with a total of 2.236 million cases of private lending,Litigation involving the distribution of burden of proof has become a hot spot,focus and difficulty in civil trial practice in recent years.Based on the judicial practice of folk lending cases in China,this paper studies the distribution rules of burden of proof in combination with legal theories,which can provide legal basis for judicial practice and have guiding significance for the justice and accuracy of trial results.Firstly,this paper expounds the concept of burden of proof from the perspectives of continental law system,Anglo-American law system and Chinese academia.Secondly,combined with specific cases,it analyzes the difficulties in the distribution of burden of proof in China's folk lending litigation.For the defects and inadequacies of the rules of the distribution of burden of proof in China's folk lending litigation,it considers from two perspectives of legislation and judicial practice.Thirdly,it analyzes and compares the role of the distribution of burden of proof in folk lending litigation overseas,and brings some enlightenment to improve the distribution of burden of proof in folk lending disputes in China.Finally,in view of the problems and deficiencies in the distribution of burden of proof in China's folk lending litigation,this paper proposes the method of improving the distribution of burden of proof from the perspective of legislation and judicial practice,in the hope of correctly guiding the healthy development of folk lending.The text of this paper is divided into four parts,as follows:The first part is the analysis of the concept of burden of proof in folk lending litigation.By sorting out the general theories of the burden of proof in the continental law system and the Anglo-American law system,the concept of the burden of proof is summarized based on the viewpoints of Chinese academic circles.This paper expounds the concept of distribution of burden of proof,and expounds the general rules of distribution of burden of proof that should be followed in folk lending litigation cases by sorting out the legal provisions of distribution of burden of proof,that is,"who claims,who provides evidence".Through case analysis,it finds out the difficulties in the distribution of burden of proof in folk lending litigation,including the complexity of lending facts,the difficulty in determining the main body of lending,and the general lack of lending evidence.The second part is the reflection on the distribution rules of burden of proof in China's folk lending litigation.Based on the analysis of the focus of the distribution of burden of proof in China's folk lending litigation,this paper analyzes the problems existing in China's rules of the distribution of burden of proof in the context of folk lending,and expounds from the legislative provisions and judicial practice respectively.Legislation: multiple laws and regulations coexist,and the distribution rules of burden of proof are incomplete;In terms of judicial practice,the non-uniform application of distribution rules and the unreasonable use of discretionary power highlight the lag of legislative provisions and the deficiency of judicial practice in folk lending litigation.The third part is the elaboration of the general theory of the distribution system of burden of proof in civil lending litigation of foreign major countries.Based on the analysis of the United States,Germany,Japan,on the basis of the burden of proof allocation system,summarizes the foreign system of our country brings revelation,to perfect the rules of distribution of evidential burden of private lending action provides a train of thought: mainly classification of legal requirement that diversification,folk lending rules of distribution of evidential burden and clear the judge in the distribution of burden of proof is the scope of discretion from three aspects.The fourth part is about the specific measures to improve the distribution rules of burden of proof in China's folk lending litigation.This article mainly from three aspects to elaborate,namely standardizes the folk loan substantial law and the procedure law,the consummation folk loan legal system;Clarifying the facts of legal elements in folk lending cases,balancing the distribution of burden of proof between lenders and borrowers,and unifying the rules of distribution of burden of proof;Using the rule of thumb and the proof standard of high probability,judge's discretion in the distribution of burden of proof should be restricted reasonably.