In reality, the defendant is often told that he owes money and submits the iou signed by the defendant as evidence. The defendant denied that the IOUs were written by him. This kind of case is universal and the case is not complicated. However, in recent years, whether the plaintiff or the defendant should apply for handwriting identification has caused great controversy in both theoretical and practical circles. Among them, the mainstream view is that the defendant should bear the burden of proof for the authenticity of the evidence owed and apply for identification. The author holds the opposite opinion. This paper tries to talk about personal views from the aspects of evidence theory, burden of proof, defense and denial.
Two, the main reasons for the defendant to apply for identification.
Holding "the defendant should apply for appraisal"
The main reasons for this view are: 1. The first paragraph of Article 2 of Several Provisions on Evidence in Civil Procedure stipulates: "The parties have the burden of proof for the facts claimed by themselves or the facts claimed by the other party." The plaintiff claimed to owe money and produced original documentary evidence to prove that the proof had been completed. The defendant denied that he wrote the debt. In fact, it is a defense, a rebuttal, and a factual proposition. This fact claim did not happen and should be proved by providing counter evidence. 2. The defendant's application for appraisal is also binding on the plaintiff. Without the defendant's signature, the appraisal can expose the plaintiff's scam and the plaintiff will lose the case, which is a fair distribution; In addition, whether the debt is forged is clear to both parties. In practice, there is a common phenomenon in China. No matter what evidence the plaintiff provides, the defendant will not admit it. If the plaintiff is allowed to apply for identification, the defendant will always be in a negative state, which is unfair. It is unreasonable to set such a rule.
In the trial practice, there is such a situation: one party applies for judicial appraisal of the handwriting of the IOUs, and finally the appraisal agency comes to the conclusion that the samples cannot be appraised. At this point, those who hold the view that "the defendant should apply for appraisal" think that the plaintiff will bear the adverse consequences. According to the above viewpoint, the plaintiff has completed the burden of proof when submitting the evidence owed, and the defendant should bear the burden of proof when defending that the evidence owed is untrue. If it cannot be authenticated, the plaintiff who does not bear the burden of proof will bear adverse consequences, and its reasons are difficult to justify and contradictory. However, if the defendant is allowed to bear the adverse consequences, more people will inevitably create similar IOUs, which deviates from the value orientation of legal justice and order.
The author believes that the above views are only based on the rationality of who should apply for appraisal, and there is no in-depth analysis from the evidence theory. The reason is unconvincing. Rationality and legitimacy are not harmonious and unified in all cases, and sometimes conflicts arise because of the influence of social concepts or differences in individual cases. At present, our society is in a state of serious lack of honesty, and people with conscience will criticize it, but too many irrational emotional factors will affect our legal thinking to a certain extent, leading to deviations in our understanding of legal theory.
Three, from the burden of proof to talk about who should apply for identification.
Burden of proof, also known as burden of proof, means that the parties have the responsibility to provide evidence to prove their claims. In a long historical period, both the civil law system and the common law system understand and grasp the concept of burden of proof from the perspective of burden of proof. With the in-depth study of the burden of proof in the sense of behavior by scholars in the two legal systems, the "double meaning theory" of the burden of proof is finally regarded as a general theory spanning the field of burden of proof in the two legal systems. Modern burden of proof theory has also been introduced into China's civil trial practice. The burden of proof includes two meanings: the burden of proof in the sense of behavior and the burden of proof in the sense of result. The burden of proof in the sense of behavior means that the parties have the responsibility to provide evidence for their own claims. The burden of proof in the sense of result refers to the responsibility of the person who bears the burden of proof according to law to bear the adverse consequences when the truth of the facts to be proved is unknown. Defining the connotation of burden of proof from the dual meaning of behavior and result is more reasonable and scientific in the distribution of burden of proof, which is of great significance for improving the efficiency of civil trial and promoting the reform of civil trial methods.
The burden of proof in the sense of behavior is also called subjective burden of proof and formal burden of proof. Its main features are: 1. The burden of proof in the sense of behavior is externally drawn by the responsibility of the parties, so it is unconditional burden of proof in the process of litigation; 2. The burden of proof in the sense of behavior can be repeated many times with the change of the degree of proof of one party, so it is a dynamic burden of proof; 3. The burden of proof in the sense of behavior is transferred between the parties because of the strength of one party providing evidence, so it is a kind of burden of proof that can be transferred between the parties. The burden of proof in the sense of result is also called objective burden of proof and substantive burden of proof, and its main characteristics are: 1. The burden of proof in the sense of result is not drawn by the responsibility of the parties, but set by the pre-selection of the law, which is an unshirkable burden of proof; This is an invisible burden of proof. Only when the facts to be proved in the case are true or not, the burden of proof in the sense of result will appear; 3. The burden of proof in the sense of result is conditional. Only when the truth of the facts to be proved is unknown can the party with the burden of proof be required to bear the adverse consequences. Therefore, "whoever advocates, who gives evidence" is the most typical summary of the burden of proof in the sense of behavior.
As far as the cited cases are concerned, who should apply for appraisal? From the analysis of the two meanings of the burden of proof in the sense of behavior and the burden of proof in the sense of result, the key lies in whether the evidence submitted by the plaintiff is enough to effectively transform the burden of proof in the sense of behavior, and whether the fact of arrears is in a state of unknown authenticity without the original defendant applying for appraisal. The first paragraph of Article 2 of Several Provisions on Evidence in Civil Procedure stipulates that one party has the responsibility to provide evidence to prove the facts on which the other party's claim is based, but at the same time, the second paragraph stipulates: "If there is no evidence or the evidence is insufficient to prove the facts of the party, the party with the burden of proof shall bear the adverse consequences." Thus, the first paragraph is only the burden of providing evidence, not the burden of proof. If a party can't provide evidence to prove it, the prerequisite for bearing adverse consequences is that it bears the burden of proof in the sense of behavior or the burden of proof in the sense of result.
There are no clear and specific provisions on the standard of probative force of evidence in our country. The Provisions on Evidence in Civil Procedure only stipulate the comparative probative force of various types of evidence in general principle. Generally speaking, there are three methods to test the probative power of evidence: experimental proof, empirical proof and logical proof. Both empirical proof method and logical proof method are based on the evidence provided by the parties, and the probative power of the evidence can be directly confirmed by experience or logical reasoning, while experimental proof method is only based on the evidence provided by the parties, and the validity of the evidence needs to be further proved by some scientific means. For example, in the above case, if the evidence submitted by the plaintiff is not an iou, but a videotape, and the defendant claims that the person in the videotape is not him, then the judge can judge the authenticity of the videotape according to the appearance and other circumstances, combined with general experience. If both parties do not have enough evidence to refute, they can directly confirm the authenticity of the videotape, and the plaintiff has completed the burden of proof in the sense of behavior. In this case, if the defendant claims that the video is false and needs to be further proved by scientific methods, the defendant shall apply for authentication. When the parties deny the truth of facts and debts, it is impossible to judge the truth of debts only by experience, and the case needs to be further proved by scientific appraisal methods. In the absence of an application for identification, the judge could not confirm the authenticity of the evidence owed, and the case was still in a state of uncertainty. The plaintiff shall bear the burden of proof in the sense of result and shall bear the adverse consequences. Therefore, in the above cases, the plaintiff should apply for judicial expertise.
Four, from the perspective of denial and defense, who should apply for identification.
Explaining the burden of proof of handwriting authenticity in the above cases also involves the difference between denial and defense and its relationship with the distribution of burden of proof. There is not much research on defense and denial in domestic theoretical circles, and there is no distinction in legal provisions. Article 2 of Several Provisions on Evidence in Civil Procedure uses the concept of "rebuttal". According to the general theory of burden of proof distribution, the deniers do not bear the burden of proof for the denied facts, but the defenders must bear the burden of proof for the defended facts. This theory originated from Roman law, which laid the foundation for later research on the distribution of burden of proof. The most representative theory is the distribution theory of burden of proof put forward by Mr. Rosenback, a German master of procedural law, that is, the parties who advocate the existence of rights should bear the burden of proof for the fact that the legal elements of rights exist; Any party who denies the existence of rights should bear the burden of proof for the legal elements of rights obstruction, rights elimination and rights restriction.
The theoretical basis of the classification of legal elements lies in implementing the principle of equality of parties and the concept of litigation justice. At present, although the classification theory of legal elements has also been questioned, such as paying too much attention to the tradition of substantive law and ignoring social problems such as ethics in civil litigation practice, the principle that "negative people do not bear the burden of proof" has been widely recognized and adhered to in the theory and practice of civil litigation in various countries. The classification of legal elements is still an important theoretical basis for judges in civil law countries to confirm the burden of proof.
Denial in civil litigation refers to the statement made by one party when he thinks that the facts claimed by the other party are untrue or nonexistent. According to the different contents and forms of denial, it can be divided into two categories: one is direct denial, that is, the parties only state that the facts advocated by the other party are untrue and directly deny them; The second is indirect denial, that is, the parties actively advocate facts that have nothing to do with the other party's claims and indirectly deny the other party's claims. Defense refers to the behavior that the parties exclude the other party's claim by claiming different facts or legal relations with the other party. The broad defense includes the defense in procedural law and the defense in substantive law. The defense in substantive law can be divided into the following three situations: first, the defense of right obstacle, that is, the defense that hinders the legal effect advocated by the other party, such as the defense of the actor's incapacity and the defense of justifiable defense; The second is the defense of eliminating rights, that is, the defense of eliminating the rights claimed by the other party, such as liquidation, escrow, debt cancellation, etc. The third is the defense of exclusion of rights, that is, the defense of excluding or preventing the other party from claiming rights, such as the right of cancellation and the right of set-off.
The main difference between defense and denial is that the defender admits the facts of the other party and advocates that other facts exclude the other party. The defense is an independent factual claim. Deniers refute each other by refusing to admit the facts or important facts claimed by the other party. For example, it is a defense that the parties agree that the evidence owed is written by themselves and the content of the evidence owed has been changed by others. However, the parties' failure to acknowledge the IOUs or the authenticity of IOUs is actually a denial, not a defense. Therefore, the plaintiff should continue to bear the burden of proof in the sense of behavior and apply for the authenticity of the evidence owed.
Five, from the provisions of the judicial interpretation to see who should apply for identification.
Judging from the nature of the legal relationship of the arrears case, it is actually a contract dispute. Based on the different reasons for the arrears, there may be loan contract relationship, sales contract relationship and so on. IOUs can be used as proof of contractual relationship. Article 5 of Several Provisions on Evidence in Civil Procedure stipulates: "In a contract dispute case, the party who advocates the establishment and effectiveness of the contract relationship shall bear the burden of proof for the fact that the contract is established and effective ..." This provision is the most typical embodiment of the classification theory of legal elements. Plaintiff claims to be in default, and should bear the burden of proof for the fact that the contractual relationship was established and came into effect. However, Plaintiff only provided the evidence of default, and could not prove the contractual relationship when the authenticity of the evidence of default was unknown, so Plaintiff failed to complete the burden of proof. Therefore, the plaintiff should apply for identification.
When the plaintiff applies for appraisal, the defendant should cooperate, such as providing samples written by himself. Otherwise, according to Article 75 of Several Provisions on Evidence in Civil Procedure, if there is evidence to prove that one party refuses to provide evidence without justifiable reasons, and the other party claims that the evidence content is not conducive to the evidence holder, it can be presumed that the claim is established. If the case cannot be determined, the defendant shall bear the adverse consequences.
Six, from the safety analysis evidence, who should apply for identification?
Our country has an important theory to explain the meaning of burden of proof, that is, the theory of dangerous burden. According to this theory, the burden of proof refers to the burden of legal consequences that are not conducive to the parties when the facts that constitute the legal relationship are unclear, and the court does not apply the law that causes the occurrence, change or extinction of the legal relationship. The burden of proof in the sense of result can only be borne by one party. In the specific litigation process, the parties who bear the burden of proof in the sense of result need to provide evidence to the court to prove the facts of the case, so as to avoid the situation of unclear authenticity; The other party will also provide corresponding evidence, so that the facts of the case advocated by the other party are not true or false.
Creditors generally bear the burden of proof in the sense of results, and the debts as evidence are generally in his hands. He should perform the necessary duty of care, such as properly keeping debts, ensuring the integrity of debts, urging debtors to write debts, and doing a good job of supervision when writing debts. Otherwise, there may be problems such as being unable to authenticate, and his rights may not be realized. If the defendant bears the burden of proof for the authenticity of the evidence owed and applies for appraisal, it will not urge the creditor to fulfill the above obligations, which is not conducive to ensuring the safety of evidence and does not conform to the theory of dangerous burden.
To sum up, the author believes that in civil arrears cases, if the parties deny the authenticity of the arrears submitted by the other party, the parties who submitted the arrears should apply for appraisal. Although it is unreasonable to set such rules in today's society, it is more conducive to the unity and stability of the law because it conforms to jurisprudence and relevant regulations.