Бремя доказывания при оспаривании договора займа в связи с его безденежностью: тенденции и проблемы

Abstract

The article reviews the peculiarities of contestation of a loan agreement for the reason of to its unfundedness. Unfortunately, the civil law science has a large number of issues concerning invalid transactions that have not been definitely solved yet. The law enforcement practice in some issues is also quite contradictory. The article reviews relevant issues of the burden of proof in contestation of a loan agreement in view of its unfundedness, makes a comparative analysis of the judicial practice of general jurisdiction and commercial courts in this dispute category. The author concludes: — It is necessary to achieve the unity of positions of general jurisdiction and commercial courts in the issue of submission of evidence on the financial opportunity to secure a loan agreement by a creditor without limitation to the presence of a loan agreement executed by the parties or imposition of the burden of proving of unfundedness of such agreement only on the borrower as is customary in general jurisdiction courts; — It is necessary to amend the Civil Code of the Russian Federation that has an enshrined provision that in the event of being deceived or threatened, the person can rely on witness testimony irrespective of whether the creditor has been earlier brought to criminal liability for deception or a threat of violence; — The court has sufficient official powers to evaluate the creditor's actions in the form of deception or a threat of violence and acknowledge them as such in the conclusion of a loan agreement within the framework of civil and arbitral proceedings and without the borrower's prior address to law enforcement authorities. The conclusions and proposals of the study can help the legislator in a more efficient reformation of laws on transaction contestation including in view of the unfundedness thereof, and be valuable for further research in the sphere of civil and competition law and related fields of knowledge, in the development of scientific and practical materials in civil and entrepreneurial law, arbitral procedure for lectures and practical classes.