证明责任视角下自然人借贷纠纷之多元解决途径探析

Analysis on Multiple Resolutions to Natural Person's Loan Dispute from the Perspective of the Burden of Proof

基于自然人借贷大多发生在熟人社会,缺少书面的借款合同,导致债权人在诉讼中经常因证据不足而败诉。因不当得利请求权和借款返还请求权在实体法上的构成要件明显不同,败诉后的债权人通常会以不当得利为由再行起诉,后诉中的不当得利属于给付型不当得利,应由债权人来负担"无法律依据"要件的证明责任。从保障诉讼公平的角度出发,建议通过减轻原告对该事实的本证义务和提高被告反证的证明标准来缓解原告的证明困境。

The lending and borrowing between natural persons occur mostly in the acquaintances circle.The lack of written loan contract and other documentary evidence has been the main reason why most of creditors lose the case in the end.Because the elements of unjust enrichment claim and loan repayment claim in the substantive law are obviously different,the losing party in most cases would file the lawsuit again in the ground of unjustified enrichment.During the latter procedure,the plaintiff shall bear the burden of proof on the fact of“no legal basis”.For the sake of guaranteeing the fairness of lawsuit,it is suggested to alleviate the plaintiff's legal obligation and improve the defendants’disproof standard.