On The Distribution Of Burden Of Proof In Folk Lending Litigation

With the accumulation of social wealth,folk idle capital expanding,people in pursuit of profits,idle fund crazy flood the market,compare to the formal financial institutions lending,private lending is more direct,convenient for private economy provides a better financing means and channels,therefore the folk lending rendered savage growth posture.But our country folk lending laws and regulations is not perfect enough,in real life status between the parties concerned have high low,often can appear higher requirement status with interest or the interest will be deducted from the principal in advance agreed in principal,appear even by malicious collusion,false lawsuit behavior infringes on the rights and interests of the realistic problems,etc.And because private lending is based on popularity,genetic relationship,the relationship between the show or trust relationship,lending often happens between family and friends,lead to borrow form is too simple,coupled with the lack of legal consciousness,borrowing when lenders often provide little evidence,or only claim credentials or only transfer voucher or nothing at all,It raises the question of whether or not the lending actually happened.This paper takes the burden of proof in private lending litigation as the research object and provides a feasible way to solve the judicial practice problems.It mainly discusses from four aspects: first of all,the qualitative nature of private lending,the legal nature of private lending,clear the difference between private lending and formal finance,private lending and informal finance,and explore the common and difficult to identify the facts in the disputes of private lending.Second,analysis of the Supreme People’s Court,the folk lending legal interpretation to understand and apply article 16 lawsuit plaintiff to creditor’s rights certificate only when the distribution of burden of proof,to explore the effectiveness of evidence of creditor’s rights certificate,and for the defendant to the different nature of the justifications,problems of logic analysis article 16,at the same time,in case an interpretation to correctly understand and apply the law.Again,article 17 of this judicial interpretation,evidence only transfer voucher cannot be directly determined lending,the occurrence of borrowing purpose explore the distribution of burden of proof,the same as the article 16 of the expression "to provide evidence to prove that" has a different proof responsibility,clear evidence of the transfer voucher the plaintiff,It also discusses the liability nature of the defendant when he makes different pleadings.Finally,the paper puts forward corresponding suggestions to correct the problems that the facts are difficult to be determined in the private lending litigation.The analysis of the distribution rules of the burden of proof of private lending should be based on the "normative theory" and put forward specific reference approaches to the proof process of the private lending litigation.This paper puts forward specific rules for the allocation of burden of proof in view of the situation that there are only creditor’s right certificates such as IOUs,only electronic transfer certificates,the defendant’s protest that there is no delivery fact,the interest is deducted from the principal in advance,and the authenticity of creditor’s right vouchers.It emphasizes the importance of applying empirical rules and restricts the discretionary actions of judges.