民间借贷诉讼中的证明责任问题

Burden of Proof in Private Lending Lawsuit

我国民间借贷司法实践中经常出现事实认定的困境。这类困境并未伴随最高人民法院民间借贷司法解释的实施而化解;相反,由于该解释第16条、第17条在术语使用、条文逻辑上的明显缺陷,实务中已经出现新的混乱。解决问题的出路不是制定更多司法解释,而是在坚持规范说确立的证明责任分配方法的基础上,引入主张责任、主张的具体化、证明的必要性、提出证据责任的转移、本证和反证的区分等理论,对事实调查的流程做更精细的划分,对当事人在各阶段的任务做更具体的分配。

In our country, fact-finding in the judicial practice of private lending is often found in difficulty. This kind of difficulty does not be solved through the implementation of the private lending judicial interpretation by the Supreme People＇s Court; on the contrary, because of the obvious defects in the use of terms and logic of clauses of article 16 and article 17, new chaos has been emerged in practice. The solution to the problem is not to develop more judicial interpretation, but to introduce theories such as burden of claim, embodiment of claim, necessity of proof, putting forward transfer of burden of evidence and differentiating assertive evidence and rebuttal evidence, to have a more detailed division in the process of fact investigation and to have a more specific allocation for party＇s mission at all stages on the basis of adhering to the allocation of burden of proof established by norm theory.