Research On The Distribution Of Burden Of Proof In Private Ioan Cases

In judicial practice,the plaintiff only brought a private loan lawsuit based on debt documents such as loans,receipts,and arrears.The defendant defended that the loan had been repaid,or the plaintiff only filed a private loan lawsuit based on the transfer certificate of a financial institution.The defendant pleaded that the transfer was a repayment of a previous loan or other obligation of both parties.These cases are common but difficult to deal with in practice.The main feature of these cases is that the object is in an unclear state of authenticity.This requires the system of burden distribution to solve the problem.Articles 16 and 17 of the Regulations on Certain Issues Concerning the Application of the Law in Trial of Private Loan Cases,promulgated by the Supreme People's Court on August 6,2015,specifically provide for the distribution of the burden of proof in private loan cases.The purpose of this provision is to solve the difficulties that are difficult to identify in the judicial practice of private lending,but in fact there are problems in the use of concepts in the logical terms of Article 16 and Article 17 of the judicial interpretation.As a result,there will be confusion in judicial practice.The setting of the terms of the judicial interpretation violates the "standard theory" of the general theory of the civil law system,namely the German scholar Luosenbeike,reduces the standard of proof of the fact of borrowing,confuses the reasons for denial and defense,and the relationship between this certificate and counter-evidence.In the form of cases,the author intends to explain the impropriety of this judicial interpretation in the light of the "normative theory" of proof responsibility in the general theory of civil law.