Research On The Burden Of Proof In Folk Loan

In the case of private lending,the trial of private lending cases with only transfer vouchers has become a difficult and focused issue in judicial practice.That is,the parties only rely on the transfer evidence to claim that the lending relationship was established,while the other party denies that the lending relationship was established.Assign questions of proof of responsibility and conduct fact-finding activities.The factual trials and evidence investigation activities in such cases are often plagued by the lack of direct evidence proving the establishment of a loan,which leads to confusion in the practice of practice.Under the framework of China’s proof of responsibility theory,this paper analyzes the theoretical contradictions caused by the rules of civil lending proof liability according to the existing judicial interpretation and legal provisions of private lending,combined with the difficult problems in such private lending disputes in judicial practice,and proposes only Specific applicable rules for proof of liability in private lending cases with transfer evidence.This article has a about of 30,000 words and is divided into four parts:Part Ⅰ: Statement of problem.From the fact that there is no direct evidence to prove that the private lending case established by borrowing and lending has become a difficult point of trial practice,integrating and analyzing the different practices of different courts in such cases before and after the promulgation of the "Provisions" may lead to the problem of "different judgments of the same case".The academic circles discussed the Article 17 rules of the Regulations,pointing out that Article 17 of the Regulations incorrectly applied the concept of "defense" in the terms of the articles,and there were obvious loopholes in the logical expression,which led to the violation of the basic theory of the relevant burden of proof.It needs to be explained and the wrong part corrected.The second part:There is only a theoretical analysis of the rules of liability for private lending proof of transfer vouchers.This part specifically analyzes the theoretical problems and cruxes arising from the rules of burden of proof established in Article 17 of the Judicial Interpretation of Private Lending.First of all,the proof ofthe transfer certificate,the transfer certificate as the documentary evidence is indirect evidence,the transfer certificate alone can not directly presume that the loan is agreed to be established to reduce the burden of proof of the plaintiff,from the nature of the transfer certificate,there is no justification for establishing a legal presumption Reasons for rationalization;Secondly,the rationality of the rules for the distribution of burden of proof in Article 17 of the Judicial Interpretation of Private Lending.Combining the concept of proof of responsibility and establishing the basic principle of the distribution of burden of proof,this paper discusses the error in the distribution of the burden of proof in Article 17 of the Judicial Interpretation of Private Lending:the defendant bears the burden of proof because of the concept of "who advocates who gives evidence" Responsibility;in the context of Article 17 of the Judicial Interpretation of Private Lending,the proof of the certification required by the defendant cannot be logically self-consistent.Finally,after clarifying the proof of the transfer voucher and the correct distribution of the burden of proof,discuss the issue of the standard of proof applicable to Article 17 of the Judicial Interpretation of Private Lending.Part Ⅲ: Only the private lending of the transfer voucher is applicable to the reduction or inversion of the burden of proof.The key point of the type of article 17 of the Judicial Interpretation of Private Lending is that although the defendant failed to prove that the legal relationship other than borrowing was established,the claim of the plaintiff ’ s loan relationship could not be established.This is the logical relationship.Therefore,after clarifying the distribution of the burden of proof,it is necessary to consider whether the private lending with only the transfer voucher is applicable to the reduction or inversion of the burden of proof,that is,to reduce the plaintiff’s burden of proof or to increase the burden of the defendant’s burden of proof.The way to rationally distribute the burden of proof,and ultimately achieve the purpose of substantive justice.Part Ⅳ: The amendment of the rules of liability for private lending with only transfer vouchers.First,re-distribute the burden of proof with the "normative theory" and clarify the basic connotation of the relevant concepts,including the defense and the grounds for denial,the evidence and the counter-evidence;secondly,the reasonable fact-presumption rules apply,and whether the fact of borrowing is established requires the rule of thumb.Support,the transfer certificate can not enablethe plaintiff to complete the initial proof.After the defendant denies,the plaintiff is required to further assume the responsibility of persuasion.In the process of persuasion,the judge judges whether the original defendant has the necessity to present evidence according to the rule of thumb.Finally,it clarifies the nature of the original defendant’s claim.And the factual presumption rule makes the responsibility for presenting evidence to improve the factual resolution of the case when the parties transfer back and forth.After exhausting the means of investigation,the degree of proof of the fact of borrowing is judged,and the high degree of probability is presumed to be established.If the existence of the loan and loan relationship is still unclear,then the result responsibility of objective proof of responsibility should be applied.