Distribution Of Burden Of Proof In Cases Of Lack Of Loan Contract

The lack of loan contract lending case is a kind of more complicated case in private lending cases.With the rapid development of the economy,the form of private lending is becoming more and more diversified,in addition to the traditional cash lending,through the bank,WeChat,Alipay and other transfer payments to become an important form of private lending.This paper mainly studies in the case of private lending cases,the plaintiff only the bank,WeChat or Alipay transfer vouchers in the case of litigation to the court,request the defendant to return the transfer money when the two sides prove the distribution of responsibility.In 2015,the Supreme People's Court promulgated the provisions on several issues concerning the law applicable to the trial of private lending cases(hereinafter referred to as the "Private Lending Regulations"),of which article 17 th provides for this issue,that is,"plaintiffs only initiate private lending proceedings on the basis of the transfer vouchers of financial institutions,The defendant contests that the transfer is a prior borrowing or other obligation to repay the parties,and the defendant shall provide proof of his claim.After the defendant has provided the corresponding evidence to prove his claim,the plaintiff should still bear the burden of proof on the establishment of the loan relationship ".As can be seen from this provision,the Supreme People's Court views the handling of such cases.However,in judicial practice,there are two very different understandings in response to the judicial interpretation: some trial courts held that the plaintiff filed an action on the basis of the transfer voucher,that the defendant's request for return of the loan could be supported,and that the transfer voucher could prove the fact that the defendant had borrowed money from the plaintiff.In contrast,some trial courts held that the plaintiff's request to return the loan on the basis of the transfer voucher could not be supported,and that the plaintiff had only the fact that the transfer voucher could not prove that the defendant had borrowed money from the plaintiff,and that there might be other economic exchanges between the two parties.The above two very different kinds of trial opinions make the "Private lending regulations" 17 th in the actual application of the process of disagreement,reflecting the lack of loan contract lending cases in the trial of the focus and difficulties.Based on the application ofthe 17 th article of "Private lending regulations" in judicial practice,this paper probes into the problems existing in judicial practice through the method of empirical analysis,on the basis of the theoretical analysis of the allocation of proof responsibility in private lending cases,and puts forward some suggestions for amendments.The author thinks that the main ideas of perfecting the distribution of burden of proof in loan cases which lack loan contract can be summarized as follows: Following the general rules of the distribution of burden of proof;strengthening the plaintiff's burden of proof;clarifying the nature of the defendant's plea;clarifying this certificate and counter-evidence;and constructing the system of transfer of burden of proof.It is hoped that a useful amendment will be provided to the application of article 17 th of the private lending regulations,which will provide useful help for the allocation of the burden of proof of borrowing contract lending cases in judicial practice.