民间借贷诉讼中的证明责任问题

发布时间：2018-06-23 16:58

本文选题：民间借贷诉讼 + 证明责任　；参考：《西南政法大学》2015年硕士论文

【摘要】：2008年风靡全球的金额危机给我国的经济带来巨大振荡,民间借贷案件数量不断攀升。民间借贷案件持续高发运行,标的越来越大的态势日渐突出,这一方面表明活跃的民间融资给我国的金融秩序乃至经济社会生活带来了巨大冲击,不断增长的民间借贷案件也给法院的审判、执行工作带来巨大压力;另一方面指明民间借贷高发、失范等问题未从根本上得以解决。只有妥善解决民间借贷纠纷方可维护社会和谐稳定。民间借贷案件往往案情复杂,事实认定难度大。在民间借贷诉讼中,证明借贷关系的主要证据是书证,书证又包括借据和转账凭证等,而在司法实践中如何全面审查判断相关证据,以及公平分配举证责任对于案件的审判至关重要。本文通过采用案例分析法、比较研究法、理论联系实际法,对张昕恺诉易胜民间借贷纠纷案加以剖析,通过全面呈现本案案情总结出了案件中双方争议之焦点,分析了本案中当事人提交的证据及其待证事实,比对了大陆法系与英美法系中有关证明责任的概念,并结合我国民事诉讼法及新民事诉讼法司法解释中举证责任分配之相关规定,对双方当事人争议之焦点进行了细致、深入、透彻的分析,进而提出诸多完善民间借贷诉讼中的证明责任及相关事实认定规则的建议。本文分析、研究的案例是张昕恺诉易胜民间借贷纠纷一案,此案案情非常复杂,事实认定难度非常大,历经一审、二审,易胜虽败诉,但本案确有许多不公之处。本文的结构如下:第一部分是案例内容介绍,包括案由、案情介绍和全案证据及其待证事实分析。本案案由为张昕恺诉易胜民间借贷纠纷案;案情部分依次介绍了一审当事人的诉讼请求,一审法院查明的事实、判决理由及判决结果,二审当事人的上诉请求,二审法院查明的事实、判决理由及判决结果;在本案证据及其待证事实分析部分,对本案全部证据及各证据用以证明的待证事实进行了细致、准确的分析。第二部分是对本案争议焦点的总结与评析。本案的争议焦点主要有两个:一是张昕恺与易胜之间是否存在真实的债权债务关系;二是本案中的举证责任该如何分配以及举证完成后、经审查、认证,案件终结时,案件事实仍真伪不明时法院该如何公正裁判。通过结合相关证据与现有法律规定,得出分析结论:第一,无法认定张昕恺与易胜之间存在真实的债权债务关系;第二,张昕恺应对其主张的存在80万元债权债务关系与20万元现金已交付的事实进行举证证明,在审核判断本案全部证据后,应当认定为张昕恺举证不充分并应承担不利乃至败诉之后果。第三部分是对民间借贷诉讼中证明责任相关问题的阐释。该部分主要介绍了两方面内容,首先是对证明责任之概念的界定,分别从大陆法系、英美法系和我国立法及司法解释对证明责任之概念的界定进行比较、归纳,以及本文主张证明责任的概念之应有之义,包括当事人的主观证明责任,即提出证据证明其主张之责任,以及客观证明责任,即举证完成后,经全面审查、认证所有证据,案件事实依然真伪不明的,承担举证责任的一方当事人应当承担之不利后果;其次详细论述了民间借贷诉讼中当事人所要承担的证明责任应有之义。第四部分提出了完善民间借贷诉讼中证明责任及相关事实认定规则的一些富有操作性及建设性的建议:第一是总结了民间借贷诉讼中当事人举证责任分配的一般规则,主要基于立法及司法解释规定,并结合自然人之间的借款合同之实践性这一合同特性得出;第二是针对民间借贷案件中特殊情形下举证责任分配的建议,包括出借人、借款人承担举证责任之情形;第三是基于民间借贷案件往往案情复杂、事实认定难度大之原因,提出事实认定的一般原则;第四是针对司法实践中,当事人主张以现金支付出借款之事实提出了认定规则。
[Abstract]:The amount of money crisis that swept the world in 2008 has brought great oscillation to our country's economy, the number of private lending cases is rising. The cases of private lending continue to run, and the trend of the scale is becoming more and more prominent, which shows that the active folk financing has brought great impact on the financial order and the economic and social life of our country. The broken private lending cases have also brought great pressure to the trial of the court and the execution of the work. On the other hand, the problems such as high incidence of private lending and anomie have not been solved fundamentally. Only a proper solution to the disputes of private lending can maintain social harmony and stability. The cases of folk lending are often complicated and the fact is difficult to identify. In the loan lawsuit, the main evidence of the loan relationship is documentary evidence, the documentary evidence includes the borrowings and the transfer vouchers, and how to examine and judge the relevant evidence in the judicial practice, and the fair distribution of the burden of proof are crucial to the trial of the case. In the case of the case case, Xin Kai sued the case of the dispute over the folk loan. It summarizes the focus of the dispute between the two parties in the case, analyzes the evidence submitted by the parties in this case and the facts to be proved, and compares the concept of the burden of proof in the continental law system and the Anglo American law system, and combines the civil procedure law and the new civil action in our country. The relevant provisions of the distribution of the burden of proof in the judicial interpretation of the law, the focus of the dispute between the parties of the two parties is carefully, deeply and thoroughly analyzed, and then a number of suggestions to improve the burden of proof and the relevant facts in the private lending litigation are put forward. This paper analyzes the case of Zhang Xinkai v. Case case is very complex, the fact is very difficult to identify, after first instance, second trial, although Yisheng has lost the lawsuit, but this case does have a lot of injustice. The structure of this article is as follows: the first part is the introduction of the case content, including the case, the case introduction and the whole case evidence and the facts to be proved. The case is for Zhang Xinkai to sue the civil debit and credit case; case It introduces the litigation request of the first instance, the facts found by the court of first instance, the reason for the judgment and the result of the judgment, the appeal of the Party of the second instance, the facts found by the court of the second instance, the reason for the judgment and the result of the judgment; in the case of the case evidence and the analysis of the facts of the case, all the evidence and the evidence in this case are proved to be proved to be proved. The second part is the summary and analysis of the focus of the case. There are two main points of dispute in this case: one is whether there is a true debt debt relationship between Zhang Xinkai and Yisheng, and the two is how to allocate the burden of proof in this case and when the proof is completed, after the examination, certification, and the end of the case When the facts are still true and false, the court should make a fair referee. By combining the relevant evidence and the existing law, we can draw the conclusion of the analysis: first, it is impossible to identify the true debt relationship between Zhang Xinkai and Yisheng; second, Zhang Xinkai should have a debt relationship with the existence of 800 thousand yuan claims and 200 thousand yuan cash. It is proved that, after examining and judging all the evidence in this case, it should be identified as the inadequate proof of Zhang Xinkai's proof and the consequences of losing the lawsuit. The third part is the explanation of the related issues related to the burden of proof in the private lending litigation. The part mainly introduces two aspects, first of all, to define the concept of the burden of proof. Not from the continental law system, the Anglo American law and the legislative and judicial interpretations of the definition of the burden of proof, as well as the meaning of the concept of the burden of proof, including the subjective burden of proof of the parties, that is, the burden of proof to prove its responsibility and the objective proof of responsibility, that is, after the proof is completed, it is comprehensive. To examine and authenticate all evidence, the facts of the case are still true and false, and the party that bears the burden of proof should bear the adverse consequences. Secondly, it discusses in detail the meaning of the burden of proof to be borne by the parties in the private lending litigation. The fourth part proposes to improve the burden of proof in the litigations and the related facts. Some constructive and constructive suggestions: first, it summarizes the general rules of the distribution of the litigant's burden of proof in the private lending litigation, mainly based on the legislative and judicial interpretation, and combines the practicality of the loan contract between the natural people, and the second is aimed at the special circumstances of the private lending cases. The suggestion of the distribution of the burden of proof includes the borrower and the borrower's burden of proof; third is the general principle of the fact that the case is often complicated, the fact is difficult to identify, and the general principle of the fact identification is put forward. The fourth is that in the judicial practice, the parties advocate the fact that the fact is to pay the loan with cash.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D925.1;D923.6

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