Research On Burden Of Proof In Civil Loan Litigation

In the civil lawsuit,the burden of proof has played the critical position.In the private lending law-case,since there are different judging logics for burden of proof in <Provisions for Several Problems of Applicable Law in Private Lending Law-case Judging Issued by the Supreme People ’ s Court>(hereinafter referred to as <Private Lending Provisions>),<Interpretation to Application of Civil Procedural Law of the People ’s Republic of China Issued by the Supreme People’ s Court>(hereinafter referred to as <Interpretation to Civil Procedural Law>)and <Several Provisions for Civil Procedural Evidence Issued by the Supreme People’ s Court >(hereinafter referred to as<Provisions to Civil Procedural Evidence>),when the court is facing with the problems for multiple norms integration,the phenomenon for “ different judging for similar cases” will appear if different judging norms have been selected.Although the 15 th clause of <Private Lending Provisions> has provided uniform judging instructions to the court pr eliminarily,it has brought new confusion in judicial application since there are still logical conflicts in related provisions.Based on the practical cases,it is very necessary to conduct overall discussion to existing problems in burden of proof allocation for private lending law-case,carry out in-depth analysis for reason and propose pertinent improvement countermeasures.On this basis,this paper shall be broken down into three parts.In the first part,the basic principle for burden of proof in civ il lawsuit has been clarified especially for the basic characteristics and allocation policy through summarizing the basic theory for burden of proof allocation.In the second part,from the judicial practice aspect,the current situation for burden of pro of in private lending law-case has been analyzed to study on corresponding application problem and provide reasons.In the third part,regarding to the application problem for burden of proof in judicial practice,some improvement suggestions have been pro posed.Firstly,for the 15 th and 16 th clauses of <Private Lending Provisions>,theoretical loopholes have been corrected.Secondly,substantive law shall be regulated and certification for legislative fact for private lending litigation law shall be improv ed.At last,the burden of proof regulation for private lending in our country shall be improved from three aspects including guiding the judges to make rational use of empirical rule,reducing the standard for burden of proof appropriately under special circumstances and emphasizing the guiding role of cases so that the burden of proof allocation problem in private lending law-case can be solved properly.Meantime,this will provide correct instruction for the judges as well as protect the judicial authori ty and improve judicial credibility.