The place that the place of quote loses a lawsuit -- the dispute of receipt for a loan that has no l

Details of a case

Armour hold a piece of second issued receipt for a loan to forensic to lodge a complaint, view second lends ready money to its 500 thousand yuan are not returned, requirement second returns money. Content of this receipt for a loan is " lend a RMB 500 thousand yuan today, borrower second " , receipt for a loan did not write lender. Second advocates receipt for a loan is its are written to case alien place, have never met before with armour, nonexistent leasehold relation. Former one, 2 careful court all thinks via cognizance holder of receipt for a loan but illative for lender, below the case that overturns without evidence in second, should maintain bilateral folk leasehold relation to hold water, adjudicate Yi Xiangjia assumes reimbursement responsibility.

Difference

After the case enters review process, produced difference to how handling this case: The first kind of viewpoint thinks, below the circumstance that does not have new evidence, ying Wei protects former judge to sentence force already; The 2nd kind of viewpoint thinks, although second is offerred evidence all is not the testimony that can cancel first trial to adjudicate directly, but these evidential enough make a judge leasehold to this folk whether be put in generation reasonable suspicion, should accentuate the quote responsibility of armour, when its quote cannot when, the agree carries quote incapable to prove responsibility.

Review analyse

The author agrees with the 2nd kind of viewpoint, reason is as follows:

One, did not carry when creditor's rights proof bright when lender, in judicatory solid Wu general and illative the holder of proof of this creditor's rights is creditor, possess qualification of accuser main body. Here illative, be in fact illative, belong to inference substantially, it is the fact that experience law and logistic regulation basis already acknowledged judiciary basis, conclude the existence of another fact. But if debtor urges holder of creditor's rights proof,be not real lender or creditor's rights alienee, answer to offer evidence to prove by its. Specific will tell to this case, because case alien already died, cannot confirm the leasehold concern between its and second, show receipt for a loan to be in armour hand, OK and illative armour is creditor. Former one, 2 careful court is abide this train of thought adjudicates this case.

2, in light of the evidence that submits from second, although do not have direct evidence to prove armour blame is creditor, but in light of the evidence such as the process that bill signed in acknowledgement of debt of integrated second state fashions, time and its economic atmosphere, judge enough is leasehold to bilateral existence acceptability reach money consign to generate reasonable suspicion. " top people court about trying statute of comfortable use of civilian leasehold case the regulation of a certain number of problems " the 16th the 2nd section provision: "Leasehold act has not produce the accused counterplea actually and can make reasonable specification, the economic faculty that people court ought to join consign of leasehold amount, money, party, place or between party trade means, trade belongings of habit, party is fluctuant fact and the element such as circumstance and witness testimony, integrated judgement check is leasehold whether does the fact happen. " set according to this, armour ought to continue to exist with respect to both sides leasehold and acceptability reach money consign to assume quote to prove responsibility. Specific will tell to this case, in loan amount bigger and when be cash, receipt for a loan has an abecedarian to prove effectiveness only, lender still should provide other evidence, if should provide evidence of data of character of testimony of a witness of money origin proof, testimony, seeing and hearing, electron,wait remove reasonable suspicion. Armour view is getting second by case alien to its loan, but did not offer evidence to prove. Below the condition that does not meet without each other of interest rate of lender, loan, security, 2 people, informal lend 500 thousand yuan of cash, do not accord with constant manage and trade habit. The judge inquired from adjudgement management system according to powers and authorities of office armour is in since 2005 case of this case of experience of area under administration, discover the case that involves armour is only one case this, can confirm armour is not the profession that advocates for its to put lend staff. Money of armour view loan originates the project that its contract, yi Wei offers evidence to prove. Armour is avowed in 2 careful the money of real at that time pay is 475 thousand yuan, deducted interest of a month beforehand 25000 yuan, ever since every month interest pays by case alien, confirm without evidence already also do not accord with constant manage.

3, " top people court about applicable < code of civil law of People's Republic of China > explain " the 90th regulation: "The fact of the basis of litigant request place that party puts forward to oneself perhaps refutes lawsuit of the other side to request the fact of a basis, ought to offer evidence to try to prove, but the except that law has a regulation additionally. Before enter a judgement, party fails to carry what depose is occupied or evidence can't prove its fact view, bear adverse consequence by the party that has quote to prove responsibility. " the 110th the 3rd section provision: "The party that has quote to prove responsibility rejects front courtyard, reject to accept an inquiry to perhaps reject to sign guarantee, the fact that treat disease is deficient in other evidence to prove again, the fact that people court holds to its does not grant to maintain. " explain a provision according to afore-mentioned judicatory, the economic faculty that joins consign of leasehold amount, money, party, trade fact and the element such as the habit, armour is done not have leasehold and acceptability the quote that reachs money consign to finish behavior meaning and result meaning to go up proves responsibility, ought to bear adverse consequence.

4, the processing train of thought of this case but brief and wraparound for " the place of quote, the place that lose a lawsuit " . Deny both sides to be put when civilian leasehold relation when second, because do not have the fact that happen to belong to inactive fact, general cannot active quote, reason second needs to did not receive corresponding loan to make reasonable specification only can. Right now, can not ask second assumes quote to prove responsibility at this point, ought to assume loan by armour instead acceptability reach prove responsibility already actually to paid quote. When armour cannot offer evidence to remove reasonable suspicion, bear quote incapable consequence by its. Train of thought of this kind of cognizance also got the committee member agrees consistently trying committee. Anyhow, fact of civilian leasehold case happens very complex, hit a road to borrow in current severity especially, below the setting of false suit, ought to strengthen form of time of delivery of ability of pair of leasehold origin, lend, money, place and consign to wait for an element more examine, the relation between integrated consideration creditor, debtor, trade the element such as the habit, use good quote responsibility allocation and logistic inference and daily experience of life, verify does not have proof force and proof power volume to have comprehensive judgement according to having, in order to reduce judicatory random sex, safeguard judicatory consistency, successional.

5, this case is cut from quote responsibility angle, when armour quote cannot when, the court decision rejects its lawsuit request. In judicatory practice, still put in a kind of circumstance: When second offerred sufficient evidence to prove armour is not creditor, be the court decision rejects lawsuit to request to still be rejected sue? Basis " code of civil law of People's Republic of China " the 119th regulation about sueing a condition, accuser must have direct interests with this case. With respect to folk leasehold and character, here " direct interests " show with this creditor's rights has inseparable related concern namely, namely accuser must be leasehold to this folk the lender that enjoys creditor's rights, alienee, suffer give person, subrogation right person or heir. When accuser the lender that is not creditor's rights, alienee, suffer when giving person, subrogation right person or heir, do not accord with sue a condition, basis " top people court about hearing civilian leasehold case applicable law the regulation of a certain number of problems " the 2nd the 2nd section provision: "People court thinks via cognizance accuser does not possess creditor qualification, the ruling is rejected sue. The ruling is rejected sue..

Unit: Tai'an quadrangle

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