Study On The Allocation Of The Burden Of Proof Based On Die Normentheorie

The burden of proof s central function is to tell the judge how to make a judgment when the fact fell into hard to tell whether it is true or false, so that the burden of proof is called the bone of civil procedural also. The allocation of the burden of proof is also the focus of academic discussion, there have many theories, and Rosenberg’s Die Normentheorie has the most influence. Our country’s Civil Procedure Law only set one rule about the burden of proof, but the rule different from the essential attribute of the burden of proof. We can’t sure the rule is about the burden of production or the burden of persuasion. From the rule, we also don’t know how to allocate of the burden of proof. In the judicial practice, there exists the misuse of the judge of the burden of proof. For example, it is controversial on the allocation of the burden of proof in unjust enrichment disputes. Some hold that burden of proof borne by claimant, while others agree that defendant borne should prove the enrichment legally. In fact, the burden of proof is a law question rather than a fact question, so that we should pay attention to the law’s stability, otherwise new unfairness may be created.Based on those reasons, the graduation thesis is consists of four parts except the introduction and the final note.Chapter 1 is about case study. To contrast two cases, this article puts forward the problem aroused the application of burden proof, and incurs those following parts.Chapter 2 is on the definition of burden of proof and basic theory of allocation. This part mainly studies the mean of the burden of proof and its concept system, and introduces several theories about the allocation of the burden of proof.Chapter 3 is on the current situation of the burden of proof in our country’ Civil Procedure Law. To point out the Civil Procedure Law’s rule is not very clearly in China. In the judiciary practice, there also exists the misuse of the judge of the burden of proof, and judges have the power of allocating the burden of proof.Chapter 4 is about Die Normentheorie and its application.In case of unjust enrichment disputes, there are some different opinions about who should take the burden of proof about no reason based on the law. Based on the Rosenberg’s theory, this article tries to resolve the allocation of the burden of proof of unjust enrichment.