Study On The System Of Burden-among Proving In Private Loan Disputes

As the "society of acquaintances" gradually stepped into the "risk society",the private lending also broke away from the trust-based pattern of acquaintance,the expansion of the scope of private lending spread the seeds of trading risks,and brought the necessary Information,casual folk non-conventional lending behavior pattern,the substantive cases received increased,the judge in difficult to ascertain the case of the hush in the case of the referee,and the legal provisions are still ambiguous.This article is committed to introducing the "concrete burden of proof",the responsibility of dissociating between the parties from China’s traditional theory "dual meaning" of the split,will be subjective proof of responsibility and Distinguish the "concrete burden of proof" and break the situation that judges arbitrarily assign subjective proof of responsibility according to free mind,and the traditional theory of "double meaning" and the original purpose of the modern proof of the duty of "amending norms" has a gap,subjective proof of responsibility is only the objective proof of the responsibility of the actual authenticity of the truth when the authenticity of the projection,and according to Rosenbeck’s "Norms",the objective proof of responsibility is already clear,permanent and final the distribution of the bureau,the result is the subjective proof of responsibility to be clear,not by the discretion of the judge on the legal elements of the facts of the verification To carry out the burden of proof,for several years,we insist on the principle of "who advocate,who prove" and the subjective proof of responsibility of the free distribution of judges is the "concrete burden of proof" to discover the facts of life,and the principle of "who advocates,who is to be proved" is not a product of logic,but an expression of our experience.This article is in deep layer in the lower layer of the theory of "the separation of concrete burden of proof and the concept of abstract proof responsibility"."the concrete burden of proof" as the foundation of the article "root",in the case of non-governmental borrowing to apply the legal issue of the "stem and leaf" of the article,to private borrowing provisions(2020 Second Amendment)Article 15 and 16 stipulate that the issue of private lending should be classified into three categories,first of all,the provisions of the Law Not to distinguish between "plea" and "denial",not even to distinguish between the two,the author in this article argues that the "defense" in this provision is "denial",which is more accurate to distinguish between this certificate and counter-evidence,and secondly to stipulate in Article 15,paragraph 2,on the distribution system of proof responsibility for the actual occurrence of the lending behavior,the author thinks that the nature of"reasonable explanation" in the clause should be defined as a lower degree of pure denial,that is,the "materialization of the obligation to state," the standard to prove that the standard "may make the case authenticity" degree can be,and the amount of borrowing,trading habits,money delivery,the parties Economic capacity and other living facts can be used as a guide to the division of the "concrete burden of proof",the second provision in Article 15 of the first paragraph of the credit repayment certificate of responsibility distribution system,the legal provisions expressed although correct,but the correspondence between "plea" and "provide evidence" is difficult to be coupled,the defense should bear the burden of proof,and the author also perceives the difference between "defense" and "conditional admission" In the case of confusion,the notion that "conditional admission" is entirely different from the "argument denial" is a completely distinct concept,"attaching an independent defense condition to the self-admission" and"attaching an independent defense condition to the self-admission The key difference lies in whether the fact is consistent with the plaintiff’s claim.This paper is divided into four parts to explain,the first part is the basic meaning of the private lending and the theory of the distribution of the burden of proof,which is the content of the ontology "what" to facilitate Readers deeply understand the corresponding concept,pave the groundwork for the narration,and the second part deeply determines the problem of the distribution system of the burden of proof of private lending,and the combination method The third part also analyzes the causes of the problem,the second part of the value theory "why" content,the fourth part of the The author puts forward the corresponding amendment proposal,the content of "how to do" in the methodology,from shallow to deep,layered,step into camp.