On The Distribution Of The Burden Of Proof In Private Loan Disputes

Private lending is a more flexible means of private financial financing,which is approved and supervised by the local government.To a certain extent,it effectively alleviates the problem of lack of bank credit funds in real life.But it is the most common problem in the private lending that the borrower does not repay or has no ability to repay.In the similar situation,as a lender,it needs to protect its legitimate rights and interests through litigation relief,which is the source of the civil lending disputes.In recent years,the number of private loan disputes accepted by provincial courts has been increasing.However,due to the lack of specific legislation on private lending in China,and with the development of the society,there are new characteristics of private lending,such as the diversification of subjects,the complexity of legal relations,and the complexity of lending content,which bring difficulties to the supervision of private lending in China.Now,the formation and practice of the theoretical system of the burden of proof distribution of private lending in China is not mature enough.Many current laws in China,such as civil procedure law and evidence law,do not specify the specific provisions of the burden of proof distribution.In 2015,the Supreme People's Court issued the provisions on Several Issues concerning the application of law in the trial of private lending cases,but the main purpose of the provisions is to solve the most difficult practical problems in practical operation,but there are still no clear standards in many aspects.In 2018,the Supreme Court issued the notice on properly handling private lending cases in accordance with the law,strengthened the examination of lending facts and evidence,strictly divided the establishment of normal private lending behavior and fraud and other criminal acts,strictly abided by the legal interest rate red line and other contents,but there are still cases of fact identification and legal application in private lending disputes Because of the problems such as the deviation of the party's claim,the lack of concretization of the party's claim and the expansion of the judge's discretion,the theory of the distribution of the burden of proof has different applicable standards in the trial practice,and it is hard to have same judgments in common case.This is the starting point of this paper's research on this issue,so the argument of this paper is: in the current situation that the burden of proof distribution system of private lending is not perfect enough,in order to achieve the goal of protecting the legitimate rights and interests of both parties and maintaining thecredibility of the judiciary,how to improve the burden of proof distribution of private lending disputes?In view of the above background,this paper will use case study method and comparative study method to summarize the typical cases of private lending in recent years,and use empirical analysis method to explore a suitable rule to apply to the distribution of the burden of proof in private lending disputes.In addition to the summary and introduction,this paper is divided into four parts to elaborate the relevant issues.In the first part,by listing the cases of private lending disputes,the author analyzes the focus of the cases and points out the problems in the current trial of private lending disputes.The second part,through the elaboration of the burden of proof distribution of civil lending disputes,analyzes the current rules and existing difficulties of the burden of proof distribution of civil lending disputes.In the third part,through the elaboration of the distribution mode of the burden of proof,taking the United States and Germany as examples,we can get enlightenment from the distribution mode of the burden of proof in the two legal systems.In the fourth part,some suggestions are put forward to improve the burden of proof distribution in private loan disputes.They are to improve the substantive law,clarify the distribution rules of the burden of proof in private lending disputes,improve the conversion of the burden of proof in private lending,and use the rule of experience and the "high probability" proof standard.