Study On The Burden Of Proof In The Case Of Unjust Enrichment Transferred From Private Lending

It is a problem worthy of attention in current judicial practice that the plaintiff first sues for private loan and then transfers the claim for unjust enrichment when the claim is not supported by the court.The unjust enrichment of the plaintiff's transfer does not violate the principle of non bis in idem and the principle of abuse of the right of action,so it is feasible in the proceedings.Many problems arise after the transfer of the lawsuit,such as the impact of the result of the first lawsuit on the later lawsuit,who should bear the burden of proof.In the process of hearing,if the court makes a judgment based on the plaintiff's previous private loan litigation behavior,or directly determines that the plaintiff has completed the burden of proof of "no legal reason" because the loan relationship of the plaintiff's claim is not established,the result of the first lawsuit will have a negative impact on the later lawsuit.In the litigation process of folk loan disputes,the plaintiff should bear the burden of proof for the existence of loan facts between his claim and the defendant,that is,the principle of burden of proof is "the one who claims,the one who presents".Therefore,in private loan disputes,the burden of proof of the plaintiff and the defendant is relatively clear.However,in judicial practice,the burden of proof in the case of unjust enrichment is divided among the parties concerned.The current laws and judicial interpretations in China have not made explicit provisions on how to allocate the burden of proof,and the academic research results are also relatively scarce.At present,the academic and practical circles in our country divide unjust enrichment into two types,namely,gift-oriented unjust enrichment and non-gift-oriented unjust enrichment.The types of private lending transferring claim of unjust enrichment are give-and-pay unjust enrichment.In terms of the distribution of burden of proof in the litigation process,there is an imbalance between the case of unjust enrichment and the case of unjust enrichment transferred by private lending,which directly leads to the cross and confusion of the burden of proof in the judicial practice of these two cases.In judicial practice,the burden of proof of unjust enrichment has not yet been perfected,and there are problems such as high difficulty of application and vague application norms.Some plaintiffs who lose in the private loan litigation and fail to put forward new evidence and facts in the transferred unjust enrichment litigation may win the lawsuit,which often leads to different judgment results due to different distribution of burden of proof.To solve this problem,it is necessary to clarify the distribution of burden of proof in this kind of lawsuit.According to the constitutive requirements of unjust enrichment,which party should bear the burden of proof of the core requirement of "no legal reason" is the focus of the dispute.In order to study the distribution of burden of proof in this kind of transfer cases in China,the author draws on the experience of legislation and judicature in the system of unjust enrichment in other countries and Taiwan region of China,and combines with the academic viewpoint.In view of this,the author believes that the complete burden of proof is the unity of the responsibility of the act and the responsibility of the result,so it is necessary to clarify the burden of proof and the responsibility of providing evidence,and analyze the distribution of the burden of proof in the case of unjust enrichment in the transfer,in order to balance the interests of both parties.It is concluded that the distribution of burden of proof should not be completely in accordance with the norms,but should be appropriately amended to strengthen the specific description obligation of the defendant,so as to ensure the equality and justice of the parties.