Research On The Burden Of Proof In Private Lending Disputes

With the continuous development of the market economy and the implementation of the case-filing and registration system,a large number of private loan dispute cases flood into the courts.Due to the lack of legal awareness and integrity of the parties,the trial of the current private leading disputes is facing great pressure and challenges.How to identify the case facts and how to allocate the burden of proof is a test for judges.About the allocation of the burden of proof,our country law is mainly embodied in the civil procedure law of the People's Republic of China,the supreme people's court about apply "the civil procedure law of the People's Republic of China,the interpretation and the supreme people's court provisions about civil action evidence,but there is no special provisions for private lending disputes.The promulgation and implementation of the provisions of the supreme people's court on several issues concerning the applicable law in the trial of private lending cases(hereinafter referred to as the "provisions on private lending")has filled the legislative gap in the burden of proof in disputes over private lending.It specifies the method of specific allocation of the burden of proof,to some extent,unified court referee scale private lending cases,but the folk lending rules in terms of defects and objective burden of proof and subjective burden of proof,burden of proof allocation,defense and deny,the certificate and disproof,prove standard and other related proof responsibility theory has not been common understanding,lead to a new chaos in practice.In view of this,this article try starting from the legislative status of private lending,to the folk lending provisions article 16,17 to perspective,analysis of the burden of proof in our country folk lending disputes apply the trial practice of the status quo,to find problem and reason analysis,finally,based on the theory of proof liability of private lending,this paper puts forward some Suggestions to improve the distribution of proof liability in disputes of private lending.In addition to the introduction and conclusion,this article is divided into four chapters.Chapter 1:Current situation of the operation of proof liability in private lending disputes.This chapter first analyzes the current situation of the trial practice of the burden of proof in the dispute of private lending,mainly from the three perspectives of the proof of the actual payment,the proof of the agreement of the loan and the proof of the defense of repayment.Secondly,the author analyzes the causes of the conflicts in the current trial practice,from the unclear logic of the evidence rules themselves,to the inadequate understanding of the theories related to the burden of proof,to the subjectivity of applying the empirical rules,to the lack of good faith of the parties and the absence of relevant rights.Chapter 2:The basic principle of proof responsibility in private lending.This chapter expounds the summary and distribution rules of the burden of proof,the evidence and disproof,the defense and denial,and the standard of proof.Firstly,the meaning of the burden of proof is expounded,and the subjective burden of proof and the objective burden of proof are distinguished.Secondly,it expounds the distribution of burden of proof in civil litigation,and analyzes the distribution logic of burden of proof in civil litigation from the meaning of distribution of burden of proof.At last,the thesis expounds the theories related to the burden of proof such as this evidence and counter-evidence,defense and denial,and standard of proof.Chapter 3:The perfection of the application of proof responsibility in the dispute of private lending.From the perspective of article 16 and article 17 of the regulation on private lending,this chapter mainly analyzes how to perfect the proof of actual payment,the proof of the agreement of the loan and the proof of the repayment defense.This chapter on Leo Rosenberg said classification of legal requirement to establish the burden of proof allocation method,on the basis of the introduction of the objective burden of proof and subjective burden of proof,defense and deny,the certificate and disproof,prove standard and other related theory,system analysis was carried out on the private lending disputes,trying to construct a set of thinking about informal lending dispute case fact investigation model.