Research On The Burden Of Proof About "No Legal Basis" For Non-payment Unjust Enrichment

China's regulations on the system of unjust enrichment only stipulate the concept of unjust enrichment and the scope of returning unjust enrichment in Article 92 of the general principles of civil law,Article 131 of the opinions of the general principles of civil law and Article 122 of the general principles of civil law.The theoretical circle and judicial practice of our country draw lessons from the theory of overseas countries(regions),and divide the unjust gains into performance unjust gains and non performance unjust gains.The only difference between the two is whether the unjust enrichment is caused by "performance".Which party should bear the burden of proof and the consequences of the failure of proof? Most scholars claim that "one party benefits,the other party suffers losses and there is a causal relationship between the benefits and the damage" these three elements are borne by the plaintiff,which is not controversial.However,the most controversial issue is who should bear the burden of proof of "benefit without legal basis".So far,there is no final conclusion.For a long time,the study of unjust enrichment in our country mainly focuses on the type of payment unjust enrichment,and the study of the burden of proof for the elements of "no legal basis" mainly refers to the type of payment unjust enrichment.However,there is little discussion on the distribution of the burden of proof of the "no legal basis" elements of non payment type unjust enrichment,which has not attracted enough attention.The purpose of this paper is to study the distribution of the burden of proof of the elements of "no legal basis" of non-payment unjust enrichment in China's mainland,and to mirror the viewpoints of Germany,Japan and Taiwan of China in the distribution of the burden of proof of "no legal basis" of non-payment unjust enrichment.This paper discusses the distribution principle of the burden of proof which is "without legal basis" in the case of nonpayment unjust enrichment,that is,the principle of the controller's self-certification.Following the principle of the controller's self-certification is conducive to the unification of the standard of the distribution of the burden of proof in the judicialpractice of the cases of non-payment unjust enrichment.There is no "inversion" and "positive" problem of the burden of proof between the plaintiff and the defendant,nor is there any unclear distribution of the burden of proof.At the same time,I hope to provide some reference value for the improvement of legislation and judicial practice in the future.