Article 16: Where the plaintiff initiates a private lending lawsuit solely on the basis of the transfer voucher of a financial institution, and the defendant argues that the transfer is to repay the previous loans or other debts of both parties, the defendant shall provide evidence to prove its claim. After the defendant provides relevant evidence to prove its claim, the plaintiff should still bear the burden of proof for the establishment of the loan relationship.
【Purpose of the Article】
This article deals with the allocation of the burden of proof in cases where there is a loan contract.
[Interpretation of Provisions]
1. Burden of proof
The burden of proof, also known as the burden of proof or the burden of proof, refers to the burden on the litigants to provide the people's court with the corresponding evidence to prove the facts they assert or recognize in accordance with the provisions of law.
The issue of burden of proof is known as the "backbone of civil litigation", and its status and role in civil litigation are very important. The presentation of evidence and cross-examination of evidence is an important part of the adjudication process. With regard to the focus of the dispute, the people's court, as the intermediary judge after the occurrence of the case, is difficult to fully grasp the course of the incident, and it is difficult for it to investigate all the causes and consequences of the matter on its own, and must rely on the content of the statements of the litigants in order to roughly restore the main facts of the case. However, out of the consideration of maximizing their own interests, litigants often avoid the important and vague descriptions of the case facts, or even make false statements, making it difficult for objective facts to be fully restored and misleading the judge's judgment. Therefore, it is necessary to emphasize the importance of evidence, clarify the burden of proof on the litigants and the adverse consequences of failing to present evidence, and the people's court needs to use evidence as evidence when determining the facts of the case, and only on the basis of specific facts can it correctly apply the law and norms and make a correct judgment.
In general, the litigants of private lending cases, i.e., the plaintiff, need to first present evidence to the court to prove the existence of a legal relationship of private lending and provide corresponding documents.
2. Allocation of the burden of proof
In the trial, there will be a "mutual attack and defense" debate stage between the plaintiff and the defendant, the appellant and the appellee, and other litigants, and after one party puts forward its claims and facts, the other party will often put forward opposite opinions and throw out new views in its favor, which requires the litigants to go through the circular process of "putting forward opinions, presenting evidence, cross-examining evidence, putting forward new views, presenting evidence, and cross-examining evidence", which involves the order of proof, that is, the distribution of the burden of proof.
The rules for the allocation of the burden of proof first appeared in the Roman law era, and are mainly divided into two rules: first, the plaintiff should bear the burden of proof; Second, the burden of proof exists in the claimant, while the denier does not have to bear the burden of proof. Roman law only clarified the burden of proof on the parties from the point of view of the act of proof, but Roman law scholars did not agree on the way in which these two rules should be applied. Some scholars believe that the first rule should be the main rule, because the claimant in the second rule is synonymous with the plaintiff, so the first rule should be used as the standard; On the other hand, some scholars believe that the claimant should include the plaintiff, and the plaintiff's burden of proof is only a situation in which "the burden of proof exists in the claimant", so the second rule should be used as the standard. After the evolution of medieval monastic law, these two rules gradually formed the general rule that the plaintiff adduces evidence on the facts of the cause of action and the defendant adduces evidence on the essential facts of his defense, with exceptions only in the case of legal presumption and assertion of negative facts.
On the basis of inheriting the two major rules of distribution of evidence in Roman law, the civil law countries and regions represented by Germany have gradually evolved into three traditional theories of burden of proof: the first type is the classification of facts to be proved according to the nature, characteristics and difficulty of proving the facts to be proved in the case; The second category is the classification of laws and regulations that directly apply the provisions where the legal provisions have clear provisions on the witnesses and the matters to be presented; The third category is the classification of legal elements that bear different burdens of proof according to the specific factual elements of legal provisions. Among them, the allocation of the burden of proof in the classification theory of facts to be proved mainly focuses on the difficulty of proving the facts to be proved in the case, and focuses on the nature and content of the facts to be proved, and it is not important what status the facts to be proved in the case are in terms of the legal constitutive elements. According to different classification criteria, the classification of facts to be proved can be divided into negative facts, external facts, and basic facts. The doctrine of negative facts distinguishes the facts to be proved into positive facts and negative facts, and the criterion for judging is whether the facts are in a positive state such as whether they have occurred or existed, and the doctrine holds that the litigant who asserts positive facts should bear the burden of proof, while the person who asserts negative facts does not need to bear the burden of proof. The doctrine of external facts distinguishes the facts to be proved into external facts and internal facts, and the criterion for judging is whether the facts can be recognized and grasped by human normal perception. The basic fact theory is developed on the basis of the negative fact theory, which holds that the party asserting the occurrence of the right should bear the burden of proof for the essential facts of the occurrence of the right, and the other party should bear the burden of proof for the lack of elements for the occurrence of the right. The classification theory of laws and regulations is relatively simple and straightforward, it mainly focuses on the substantive law provisions, and summarizes the general principles and exceptions for certain types of events through the analysis of the substantive law provisions, and for the litigants who claim the application of the general principles, they only need to bear the burden of proof for the essential facts stipulated in the general principles, and do not need to provide evidence to prove that the essential facts of the exception provisions do not exist, and the essential facts stipulated in the exceptions are claimed and borne by the other party. The Rosenbeck normative theory in the classification of legal elements is the most representative doctrine, and it is also the general theory of the allocation of the burden of proof in civil law countries and regions. Rosenbeck's normative theory starts from the elements of legal norms, analyzes the rules and exceptions of legal norms, as well as the relationship between basic norms and opposing norms according to the semantics and structure of legal norms, and uses this as a method for assigning the burden of proof. On this basis, the party asserting the existence of the right shall bear the burden of proof on the fact that the legal elements for the occurrence of the right exist; The party denying the existence of a right shall bear the burden of proof on the legal requirements for the obstruction of rights, the legal requirements for the extinction of rights, or the legal requirements for restricting rights. When the truth or falsity of the facts to be proved is unclear, the judge classifies the facts to be proved whose truth is unclear in accordance with the rules for the allocation of the burden of proof, determines the party who bears the burden of proof for the facts, and makes a judgment that he bears adverse consequences.
The allocation of the burden of proof in common law countries and regions adopts the substantive standard, that is, the burden of proof is allocated according to the interest relationship between the subject of proof and the subject of proof. Since common law countries and regions adopt an adversarial litigation model, the application of the rules for the allocation of the burden of proof is not very strict compared with that of civil law countries and regions, and more often the facts judge distributes the distribution among the parties based on experience and based on considerations such as fairness and convenience.
3. Interpretation of this Article
The issue involved in this article is how the people's court should allocate the burden of proof when the plaintiff only files a private lending relationship lawsuit based on the transfer voucher of the financial institution, but cannot provide written evidence such as loan contracts and IOUs that show the existence of a lending relationship between the two parties.
There are different views in judicial practice on the issue of whether the plaintiff can be deemed to have fulfilled the burden of proof by only providing the transfer voucher of the financial institution. There is a view that the transfer voucher of a financial institution has a certain probative force on the occurrence and flow of funds, and is evidence that the lender has paid the loan to the borrower, and the plaintiff submitting the transfer voucher of the financial institution to the court should be able to prove the existence of a loan relationship between the plaintiff and the defendant and that it has actually fulfilled the lending obligation, so it should be considered that the plaintiff's burden of proof that there is a private lending relationship. Therefore, the basis for the existence of a private lending relationship should first be the existence of a borrowing agreement between the two parties, and the provision of transfer vouchers from financial institutions alone is not sufficient to prove the existence of a borrowing agreement between the two parties, and the establishment of a private lending relationship cannot be proved, unless the defendant recognizes the existence of a lending relationship between the parties. The plaintiff shall further provide evidence to prove the existence of a loan relationship between the two parties. When the judicial interpretation was formulated, considering that the circumstances in which the loan contract relationship occurred in practice are relatively complex, if there are other transaction relationships between the two parties, there is indeed a possibility that the plaintiff may attempt to demand the defendant to return the loan that does not really exist by virtue of the transfer voucher for payment in other transactions, so when the plaintiff and the defendant have other transaction relationships, the existence of a loan relationship between the two parties should not be directly determined solely on the basis of the payment voucher. However, at the same time, considering that the parties to some loan contracts do lack legal awareness, and do not sign a written loan contract and do not issue an IOU, it is indeed more difficult for the lender to prove the existence of the loan relationship, therefore, it can be considered that the plaintiff, as the lender, has completed the initial burden of proof for the existence of the private lending relationship when it submits the transfer voucher of the financial institution, and at this time, it should further analyze and determine whether there is a private lending relationship between the two parties in light of the defendant's defense.
On the issue of whether the defendant is still required to provide relevant evidence when the defendant does not recognize the existence of a private lending relationship between the two parties, and the issue of which party should bear the adverse consequences of failing to provide evidence when the defendant cannot submit the corresponding evidence to prove that the payment is based on the claim that the payment was based on other transaction relationships, and the plaintiff cannot provide further evidence to prove that the money is a payment of the loan, the relevant opinions have changed to a certain extent in the process of formulating the judicial interpretation. At the beginning, there was a view that if the plaintiff claimed to return the loan based on the existence of a private lending relationship, it should bear the burden of proof for the fact that the parties had formed an agreement on the private lending relationship and completed the corresponding payment. If the plaintiff only provides proof of delivery such as transfer vouchers and deposit vouchers from financial institutions, but does not provide direct evidence of the formation of an agreement on a private lending relationship, and the defendant argues on the grounds that there is no lending relationship between the two parties or that there is another legal relationship, the people's court shall require the plaintiff to provide further evidence on the existence of the lending relationship. Where the plaintiff is unable to provide further evidence, their litigation claims shall be rejected. In other words, the Opinion fully assigns the burden of proof to the lender for the existence of a private lending relationship between the parties. The formulation of this interpretation requires the lender, as the plaintiff, to bear the burden of proof on the basic facts that gave rise to the legal relationship, i.e., the fact that the contract was concluded and entered into force, when it asserts that the contractual relationship has been established and effective and that a legal relationship exists between the parties. In the process of soliciting opinions on judicial interpretations, many feedback opinions based on trial practice pointed out that this system, which completely assigns the burden of proof to the plaintiff, is very difficult for many lenders who lack legal expertise, and is not conducive to the protection of substantive rights. Therefore, in consideration of the actual situation and the development of the trial work, the formulation of the interpretation of this article has been adjusted to the current state, which actually strengthens the judicial protection of legitimate lenders.
To understand the content of this article, it is necessary to grasp the following points:
(1) Prerequisites for application
This judicial interpretation applies to the situation where the plaintiff, as the lender, files a private lending lawsuit solely on the basis of the transfer voucher of the financial institution.
If the plaintiff is able to provide a loan contract, under normal circumstances, both the plaintiff and the defendant can directly express their opinions on the signing and actual performance of the loan contract, and there is no difficulty in proving whether the loan relationship exists. Where the plaintiff is unable to provide a loan contract, but is able to provide IOUs, IOUs, receipts, IOUs, and other proof of creditor's rights, it shall, in accordance with the provisions of these Provisions, make a comprehensive judgment on whether the lending behavior actually occurred on the basis of the content recorded in the voucher of creditor's rights, and in consideration of facts and factors such as the amount of the loan, the payment of the money, the economic capacity of the parties, the local or inter-party transaction methods, trading habits, changes in the parties' assets, and witness testimony. If the plaintiff can only provide evidence to prove the fact of the payment of the money, but is unable to provide supporting loan contracts or even IOUs, IOUs, receipts, IOUs and other proof of creditor's rights that can explain the background of the payment, the provisions of this article on the burden of proof on both parties shall be applied to make a determination of the facts of the case.
(2) The defendant's burden of proof
In trial practice, the defendant often has no objection to the authenticity of the transfer voucher submitted by the plaintiff to the financial institution, because the authenticity of the voucher issued by the financial institution is easy to verify and ascertain. However, since the transfer voucher can only reflect the flow of funds and the direction of the flow, even if the plaintiff indicates the purpose of the transfer reflected in the voucher through remarks, messages, etc., the defendant may still deny the plaintiff's claim of borrowing facts on the grounds that the transfer is to repay the previous loans or other debts of both parties. In this case, the defendant's defense actually formed a new claim, that is, there was a relationship of rights and obligations between the parties other than the loan relationship claimed by the plaintiff, and the transfer voucher of the financial institution held by the plaintiff corresponded to the relationship of rights and obligations outside the case. In accordance with the principle of "whoever asserts the claim, shall bear the burden of proof", the defendant shall bear the corresponding burden of proof for the existence of other loan relationships or other creditor's rights and debts between the two parties as claimed, and shall provide evidence to prove it. This provision is mainly due to the fact that the plaintiff, as the party asserting the existence of a private lending relationship between the two parties, has submitted the corresponding evidence of the actual payment of the money, although it has not been able to submit the loan contract as direct evidence, that is, it should be deemed to have completed the preliminary proof of the fact that there is a loan relationship with the defendant. In this case, if the defendant proposes other factual basis for the payment between the parties, it needs to prove its claim.
(3) The plaintiff's burden of proof
After the plaintiff has completed the initial burden of proof, the defendant has raised an objection to the plaintiff's claim that there is a private lending relationship, and needs to provide evidence for the objection. The people's court shall ascertain and verify the evidence provided by the defendant, and request the plaintiff to make a defense against the objection, and the people's court shall determine whether the defendant's burden of proof is sufficient to overturn the plaintiff's claim, and that determination will affect whether the plaintiff should bear the burden of proof in the next step, based on the content of the evidence submitted by the defendant, the degree of corroboration with the financial institution's transfer voucher, the plaintiff's defense opinions, and other supporting materials.
If the evidence provided by the defendant is sufficient to prove that the transfer voucher of the financial institution was generated in other borrowing relationships or creditor-debtor relationships outside the case, and the plaintiff cannot give a reasonable explanation in this regard, it may be determined that the defendant's objection is established, thereby negating the plaintiff's claim, and the case trial procedure is over, and the plaintiff does not need to proceed to the next step of adducing evidence.
If the defendant asserts the existence of other borrowing relationships or creditor's rights and debts, but cannot provide corresponding evidence to prove them, or even if the evidence is provided, the plaintiff can give a reasonable explanation for them, and the people's court may determine that the evidence has no factual and legal relationship with the transfer vouchers of the financial institutions involved in the case, the defendant's objection cannot overturn the plaintiff's claims, and the case trial procedure can be concluded, and the plaintiff does not need to proceed to the next step of adducing evidence.
In addition to the above two relatively simple and straightforward cases, in practice, most cases are where although the defendant has provided corresponding evidence for its objections, the probative force of the evidence is difficult to confirm the existence of other creditor's rights and debts outside the case, that is, both parties have a certain degree of truth in their claims, but they cannot completely refute the other party, and the people's court cannot determine the facts of the case based on the available evidence. In this case, the plaintiff is required to provide further evidence to respond to the objections and corresponding evidence raised by the defendant, so that the judge can analyze and determine the evidence adduced by both parties and make an accurate judgment on whether the fact of the loan claimed by the plaintiff is true.
(4) Legal consequences
When the existence of the facts to be proved cannot be determined or the truth or falsity is unclear, the party making the claim shall bear the responsibility for the adverse consequences and the risk of litigation. In light of the aforesaid different circumstances of the distribution of the burden of proof, when the defendant only denies the plaintiff's claim and fails to provide evidence to prove that the payment was due to the existence of other borrowing relationships or other creditor's rights and debts between the two parties, it shall bear adverse consequences if the facts asserted by the defendant cannot be determined. Correspondingly, if the defendant provides the corresponding evidence, since the plaintiff bears the burden of proof for the existence of the loan relationship between the two parties, the plaintiff should further provide other evidence to prove the defendant's claim. In the event that the plaintiff cannot provide more sufficient evidence to prove its claim, even if both parties have not fully performed the act of presenting evidence, the responsibility for the result at this time should still be attributed to the plaintiff, and the plaintiff shall bear the corresponding adverse consequences.
[Issues that should be paid attention to in trial practice]
1. Be cautious about the defendant's self-admission
Self-admission refers to the act of one party admitting facts that are unfavorable to oneself. Self-recognition may be made by the parties themselves or by their representatives.
This article stipulates that if the plaintiff initiates a private lending lawsuit solely on the basis of the transfer voucher of the financial institution, and the defendant claims that the transfer is to repay the previous loan or other debts of both parties, the defendant shall provide evidence to prove the claim, from which it can be inferred that when a circumstance contrary to the provisions of the article occurs, that is, although the plaintiff only files a private lending lawsuit based on the transfer voucher of the financial institution, and the defendant agrees to it, the people's court can determine the fact of the existence of the private lending relationship without further proof from both parties.
In general, the application of the self-admission rule does not involve the question of burden of proof. However, it should be noted that if in the course of the trial, the plaintiff sues for the return of the loan solely on the basis of the transfer voucher of the financial institution, and the defendant directly recognizes the fact of the loan claimed by the plaintiff, there may be problems where both the plaintiff and the defendant intentionally harm the lawful rights and interests of a third party by filing a false lawsuit, and the people's court shall, in accordance with these Provisions, make a comprehensive determination of the cause, time, place, source of funds, method of delivery, flow of funds, relationship between the borrower and the borrower, economic status, and other facts. When it is discovered that there is an obvious contradiction between the ascertained facts and the facts admitted by the defendant, the people's court shall make corresponding dispositions in accordance with the provisions of Article 92, Paragraph 3 of the Interpretation of the Civil Procedure Law, which stipulates that "if the facts admitted by the defendant are inconsistent with the ascertained facts, the people's court shall not confirm them".
2. Appropriately grasp the standard of probative force of evidence
In trial practice, both the plaintiff and the defendant will generally submit certain evidence or make corresponding statements to prove whether the private lending behavior claimed by the plaintiff has actually occurred, but none of these evidence may be able to directly and fully and effectively prove the claims held by both parties. Considering that in the actual private lending relationship, the lender and the borrower have insufficient legal knowledge reserves, insufficient awareness of making and retaining documents, and it is difficult for the relevant evidence to reach the probative force expected by laws and regulations, at this time, the people's court shall, in accordance with the provisions of paragraph 1 of Article 108 of the Interpretation of the Civil Procedure Law, fully review and compare the validity of the evidence, and in light of the relevant facts, if it is convinced that the existence of the facts to be proved is highly probable, it is sufficient to adopt a high degree of probability for the standard of proof.