Burden Of Proof In Folk Lending Litigation

The burden of proof is the backbone of litigation.In civil litigation activities,the burden of proof plays a vital role and plays a pivotal role in litigation.Civil burden of proof is embodied in both substantive law and procedural law,so it is an area where civil substantive law and procedural law collide with each other.At the same time,the burden of proof is not only related to the expression of the parties' demands,but also to the bearing of the litigation results.The burden of proof theory has always been the representative of the development trend and direction of procedural law in the field of procedural law,and it is one of the most valuable and noteworthy issues.It is also one of the basic theories in the field of procedural law in China.Generally speaking,the burden of proof refers to the obligation of the parties to collect relevant evidence in time and to provide it to the court.At the same time,the parties should bear the responsibility of using such evidence to prove the existence of certain legal facts,otherwise they will bear the risk that their claims cannot be established.Distribution of burden of proof is the core of burden of proof,but also the difficulty of burden of proof.The distribution of burden of proof in our country is divided into three parts:first,the general case is based on the general principle of distribution of proof,according to the principle of who advocates who provides proof;second,individual cases are solved by inversion of statutory burden of proof distribution through the provisions of legal or judicial interpretation;third,in special cases,judges distribute the burden of proof according to the characteristics of individual cases.With the development of economy and the acceleration of capital flow,private lending is becoming more and more common.However,in practice,there are many practical and legal problems in the regulation of non-governmental lending in China,and the emergence of these problems is largely rooted in the misunderstanding and inadequacy of the existing theory of non-governmental lending in China.In the legal relationship of private lending,the facts to be proved by the parties are as follows:first,there is a lending relationship between the two parties;second,the loan has been paid.The non-uniform distribution of burden of proof exists in the application of burden of proof in non-governmental loan disputes,and the non-uniform distribution of burden of proof is also the focus of disputes in China's legal circles.In judicial practice,people's courts have different principles and forms of distribution of burden of proof in the same case or in different cases.Even in the same case,there are great differences in the distribution of burden of proof between the first instance and the second instance,which leads to different judgments.After the promulgation of the Judicial Interpretation of Civil Lending,the provisions applicable to the trial of civil lending cases are no longer local laws and regulations of their respective provinces,but the relevant provisions of the judicial interpretation.However,the provisions of the Civil Evidence Provisions and the Judicial Interpretation of the Civil Procedure Law will still be applied in judging individual cases.Because the judging ideas of the Civil Procedure Law and the Civil Procedure Law Judicial Interpretation are different from those of the Civil Evidence Provisions,there will be different judgments caused by the application of different laws and regulations by the courts when multiple norms are combined.Although 17 of the Judicial Interpretation of Lending and Credit provide uniform and applicable judgment guidelines for civil lending disputes,there are still logical contradictions and theoretical disputes in legislation.Therefore,in order to form a unified judicial practice and theoretical consensus for the settlement of disputes in private lending,the author suggests:amending Article 17 of the Judicial Interpretation of Private Lending,innovating in legislation,correcting its theoretical loopholes and logical contradictions,and standardizing substantive laws such as the Contract Law,amending the provisions on private lending in the Contract Law,to the parties concerned.The form of loan contract and the way of performance are strictly regulated.Limit the discretion of judges.Because the discretion is a kind of power that judges use subjective initiative and positive initiative to deal with cases according to the relevant legal provisions,but if it is not restricted,it will inevitably lead to unfair litigation and abuse of power by judges,so we must correctly use this power to ensure the fairness and fairness of the trial.Unify the applicable rules for the distribution of burden of proof.Under the guidance of different legal provisions,different trial ideas will inevitably lead to different results in similar cases.Therefore,it is necessary to give guidance on the legal application of private lending to reduce the phenomenon of different judgments in the same case.