Tatbestand And Burden Of Proof Of Unjust Enrichment Of Infringing On The Rights And Interests

Unjust enrichment system originates in conditio of Roman law. Thereafter,countries place more emphasis on payment type of unjust enrichment to construct theory system. It is not until the Austrian scholar Wilburg puts forward non-payment type of unjust enrichment that unjust enrichment of infringing on the rights and interests becomes one focus of the research. The rule of unjust enrichment is prescribed in the “Article 92” of the General Principles of Civil Law of the PRC,which is frequently used by scholars as the basis for discussing a serious of unjust enrichment problems. Besides, “Article 92” is the only basis that judges regard it as the basic rule of claim right in lawsuits of unjust enrichment. However, unjust enrichment of infringing on the rights and interests is special in Tatbestand and burden of proof. The issue of the latest interpretation of civil procedure law provides new opportunities for the study of unjust enrichment of infringing on the rights and interests, which lays the foundation for the enactment of civil code law meanwhile.In addition to the introduction, demonstrates of the body is divided into four parts:Part One: Analysis of the paper topics. At first, make clear to the generation of unjust enrichment of infringing on the rights and interests and its position in the civil law system, especially the difference between unjust enrichment of infringing on the rights and interests and infringement. Secondly, analyze the relationship between the ultimate facts and the burden of proof from the perspective of the law applicable.Part two: “Normentheorie” inspection of unjust enrichment of infringing on the rights and interests. Based on analysis above, it clarifies the relationship between the burden of proof and ultimate facts from the perspective of law application and gives a clear expression of the nature of the burden of proof. However, there are differences between various points of views due to the distinct awareness of the burden of proof.It starts by describing the difference between ideas and causes, and then leads tothe core theory-- “normentheorie”. This theory has made general saying states in Germany, and Japan and China's Taiwan region for its feasibility. The thesis specifies the logical starting point- the law applies at first, and then analyzes the applicable principles and existing problems. Although “normentheorie” is supported by most people, there are still some flaws in theory. The thesis responds to criticism proposed by “normentheorie” from the perspective of fairness and justice. Finally, through the combing of the burden of proof theory development of our country, it ultimately concluded that Rosenberg's “normentheorie” has been set up and gained general position in forms of interpretation of civil procedure law in China, and become the premise of the argument.Secondly, the elements integrity theory of “normentheorie” is the basis of analyzing unjust enrichment of infringing on the rights and interests tatbestand. The innovation of this part is to replace “cause and effect” with “violations” and “no legal basis” remains for the right requirement instead of appropriate barrier element compared to Germany, and Japan and China's Taiwan area regulations. It is necessary to explicitly stipulate the special type of unjust enrichment.Part Three: unjust enrichment of infringing on the rights and interests distribution of burden of proof. “No legal basis” as the rights requirements exists on the issue of burden of proof. Firstly, give the problems in practice, and then compare to and learn lessons from other countries. Secondly, expound theoretic opinions,criticism and development.The return range and burden of proof of unjust enrichment of infringing on the rights and interests. Is unjust enrichment of infringing on the rights and interests applied to the burden of proof on the return range? In other words, shall return range of unjust enrichment of infringing on the rights and interests be borne by the parties or by the judges to use their discretion? The thesis is of the opinion that the return range is not up to the judges to use their discretion while the parties shall bear the burden of proof. In addition, rights range against unjust enrichment of infringing onthe rights and interests is distinguished into “meritorious” and “venomous” and its requirements and burden of proof in demonstrating is one of the innovations of the thesis.Part Four: Construction of anspruchsgrundlage of unjust enrichment of infringing on the rights and interests and the distribution of burden of proof. The requirements of unjust enrichment of infringing on the rights and interests and the burden of proof became clear through the discussion of parts above. Elements of essentials are the premise of burden of proof and unjust enrichment of infringing on the rights and interests should have a particular type of non-payment of unjust enrichment whose characteristics should be reflected on requirements. Then it adopts indirect disproof strategies in the burden of proof to make a supplement of“normentheorie”. Aufklarungsrecht should play its part in this process. In addition,separate provision of “meritorious” and “venomous” is crucial on the return range.