民间借贷纠纷要件事实证明责任论

《民间借贷规定》第16、17条规定的证明责任分配与《民诉法解释》第90条的规定相左，混淆了主观证明责任与客观证明责任、抗辩与否认、本证与反证，证明责任分配不当。应在要件事实证明责任论框架下，厘清仅依据借据、收据、欠条等债权凭证和仅依据金融机构的转账凭证提起的民间借贷诉讼中存在的事实认定问题，明确原告对借贷关系的证明责任，以发挥民法作为行为规范的指导作用，提高原告保留证据的自我责任意识。另外，借贷关系的事实认定往往需要借助鉴定，而仅依据证明责任分配并不能明晰债权凭证申请鉴定的责任，应结合证明标准和法官心证程度，根据主观证明责任的转移来确定由谁申请鉴定。

On the Burden of Proof of Essential Facts in Private Lending Disputes

The assignment of the burden of proof stipulated in Articles 16 and 17 of the Regulations on Private Lending is inconsistent with the interpretation of the Civil Litigation Law, which confuses the subjective burden of proof with the objective burden of proof, plea with denial, evidence with counter-evidence, leading to an improper assignment of the burden of proof. It is necessary to clarify the fact-finding problems in private lending lawsuits based only on IOUs, receipts, credit notes, and other claims evidence obtained and based only on the transfer vouchers of financial institutions, and to specify the plaintiff’s burden of proof of the loan relationship under the framework of the burden of proof based on the proof of essential facts, so that the guiding role of the civil law as the norm of conduct can be brought to play and the plaintiff’s sense of self-responsibility for retaining evidence can be improved. In addition, the determination of facts in a lending relationship often requires expert appraisal. Relying solely on the assignment of the burden of proof does not clarify the responsibility for applying for appraisal of claims evidence obtained. Therefore, taking into account the standard of proof and the degree of the judge’s mental impressions, the decision on who should apply for the appraisal should be made based on the transfer of the subjective burden of proof.