Research On The Burden Of Proof In Private Lending Litigation

In recent years,with the development of economy,people’s living standards have been rising.With the "spare cash" in the hands of the people,there are more and more private loans between natural persons.However,due to the unsystematic regulation of private lending in China,private lending lawsuits frequently occur.In the process of hearing private lending cases,there is only evidence of loan agreement or how to determine whether there is a fact of lending when the evidence is actually delivered.There are different practices in practice,which lead to the frequent occurrence of "different judgments in the same case".The root of the problem of "different judgments in the same case" is that judges have different understandings of the burden of proof and distribution rules in private lending litigation.The promulgation of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases in 2015 provides a unified guide for the burden of proof and its distribution in the judicial practice of private lending,but the 16 th and 17 th articles bring new problems due to logical errors and improper use of terminology.There are differences in understanding of the distribution of burden of proof and the standard of proof,confusion between defense and denial,unclear subject of responsibility for applying for identification of loan documents,excessive discretion of judges in the process of identification of loan facts,and unclear identification rules of electronic evidence of loan agreement and actual delivery.In August 2020,the Supreme People’s Court issued the Decision on Amending the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases.However,the main highlight of this amendment is that the judicial protection for lowering the interest rate of private lending has been put on line,and no response has been made to the burden of proof and its distribution arising from the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases.This paper is divided into four parts except the introduction.The first part is the basic principle of burden of proof in private lending litigation.This paper mainly introduces the concept,distribution principle,proof standard,proof and counter-proof,defense and denial of the burden of proof in civil litigation,and probes into the definition of private lending from the legal perspective and the rules of burden of proof in private lending litigation.Plaintiffs who claim that there is a fact of borrowing need to prove that they have agreed to borrow and actually delivered,and the defendant bears the burden of proof for his defense.If the party who bears the burden of proof cannot provide evidence that meets the standard of proof,it needs to bear adverse litigation consequences.The second part mainly expounds the practical status of the burden of proof in private lending disputes,including the increasing popularity of lending contracts,the increasing diversity of actual payment methods,and the sorting and analysis of judgment ideas.Nowadays,more and more people choose to fix the loan agreement in written form,which helps the judge to find out the facts of the case.Influenced by the development of the Internet,the actual delivery mode has broken through the original two modes: cash payment and bank transfer.We Chat transfer and Alipay transfer are also used by more and more people because of their convenience and speed.More and more evidences of loan agreement and actual delivery have been preserved,which reduces the difficulty of plaintiff’s proof,and the proportion of defendants bearing adverse litigation results is much higher than that of plaintiff.The proportion of cases changed due to new evidence is higher than that due to errors in the application of laws and regulations.The main content of the third part is the problems existing in the rules of burden of proof in private lending litigation.There are differences in the understanding of the distribution of burden of proof and the standard of proof in the judicial practice of private lending;Confusion between defense and denial leads to unclear proof standard;When there is doubt about the authenticity of the loan document,the subject of responsibility for applying for appraisal is not clear;In the process of burden of proof distribution,the judge’s discretion is too large;There is a lack of uniform rules for the identification of electronic evidence such as loan agreement and actual delivery.The main content of the fourth part is to improve the rules of burden of proof in private lending litigation.First of all,we must unify the understanding in practice: only when borrowing consensus evidence or actually delivering evidence,we can’t preliminarily determine the existence of borrowing facts;The defendant argued that there are other basic legal relationships,in order to deny the plaintiff’s claim,rather than put forward a new claim,so the standard of proof only needs to meet the reasonable explanation;After the defendant made the defense of repayment,the plaintiff did not need to bear the burden of proof because the defendant admitted that the fact of borrowing existed and became the fact of exemption.Secondly,according to the judge’s inner bias,the burden of proof determines the authenticity of the document.If the plaintiff’s claim makes the judge reach the level of inner conviction of the fact of borrowing,the defendant claims that the authenticity of the borrowing document is in doubt,and the defendant should bear the responsibility of identification at this time;If the evidence provided by the plaintiff can’t convince the judge of the existence of the borrowing facts,if the defendant claims that the borrowing documents are in doubt,the defendant should bear the responsibility of identification.Then,the exercise of judges’ discretion is restricted by strictly controlling the starting procedure,publicizing the evaluation in the judgment documents and improving the overall quality of the judges.Finally,improve the identification rules of electronic evidence in private lending litigation.Only a single electronic evidence can not be used as the basis for deciding a case,the rules for determining the authenticity and relevance of electronic evidence should be made clear,and the entrusted appraisal system of electronic evidence of loan agreement and actual delivery should be established.