The first opinion is that although the loan contract has the signature and seal of Shen, the legal representative of the decoration company, the decoration company now denies the authenticity of the signature and seal, so the burden of proof of the bank has not been completed, and the bank should provide further evidence to prove the authenticity of the signature and seal on the contract, otherwise the evidence cannot support the bank's claim, so the bank should apply for appraisal.
The second opinion is that the bank has submitted the loan contract signed by the legal representative of the decoration company, thus completing the preliminary burden of proof, and the burden of proof should be transferred to the decoration company at this time. At present, the decoration company denies the authenticity of the signature and seal, and should apply for identification to prove the authenticity of the signature and seal as evidence of its defense claim, otherwise it will not achieve the expected legal effect without the denial of corresponding evidence.
The author agrees with the second view for the following reasons:
Theoretically, if one party submits documentary evidence as evidence and the other party disagrees with the authenticity of documentary evidence, the party who takes the evidence as evidence shall bear the burden of proof for its authenticity. However, its disadvantages can not be ignored, mainly reflected in the fact that some decoration companies, in order to delay litigation or evade debts, still claim that the original creditor's rights documents provided by banks are indeed their own actions in litigation, but they still insist that banks forge their own signatures or seals. If the burden of proof for applying for appraisal is assigned to the bank, not only the time required for appraisal, but also the bank needs to pay the appraisal fee in advance. Even if the court finally decides that the bank wins the case according to the appraisal results, there is no legislative basis for punishing the decoration company for malicious claims and delaying litigation. If the decoration company transfers the property or lacks solvency during this period (even if a preservation lawsuit is filed, it will unnecessarily increase the burden on the bank), the bank will eventually get a dead letter and bear the appraisal fee. Therefore, how to determine the distribution of burden of proof between the parties must consider public policy and value orientation. Because it has nothing to do with this topic, I won't go into details.
Under the framework of debate and evidence judgment, in this case, on the surface, both parties disputed the authenticity of the evidence presented by the bank, that is, the signature or seal on the loan contract, but in essence, the focus of the dispute between the two parties was whether there was a fact that the decoration company owed money. The bank claims that the decoration company still owes money. The defense of the decoration company is that the loan contract is flawed, but it does not claim that it does not owe money to the bank.
In this case, according to the first paragraph of Article 5 of the Provisions on Civil Evidence, in a contract dispute, the party who claims that the contract relationship is established and effective shall bear the burden of proof for the fact that the contract is established and effective; It is stipulated that the party who advocates the alteration, dissolution, termination and dissolution of the contractual relationship shall bear the burden of proof for the facts that cause the alteration of the contractual relationship. For its claim, the bank put forward the loan contract as the basis for the emergence or existence of its rights, and has provided evidence to prove the normative elements of the occurrence of rights. However, if the decoration company refutes the bank's claim that the right does not exist or is hindered on the grounds that the signature or seal on the contract is untrue, it must provide evidence to prove it. This is the inevitable requirement of the burden of proof in the sense of its behavior, and it should conform to the provisions of Article 2 of the Civil Evidence Regulations that the parties have the responsibility to provide evidence to prove the facts on which their claims are based or refute the facts on which the other party's claims are based. Otherwise, there is no evidence or the evidence is not enough to prove the facts of the parties. In other words, although the decoration company questioned the authenticity of the contract and used it as a defense (in the case of the existence of the claim), it did not provide evidence to the contrary. In other words, based on its defense claim, if the decoration company does not apply for appraisal, it means that there is no evidence to support its defense claim, so the decoration company should ultimately bear the adverse consequences. Author: Yu