On Distribution Of The Burden Of Proof For Unjust Enrichment "Without Legal Basis"

This paper starts with the case of unjust enrichment,and finds that the distribution of the burden of proof for unjust enrichment litigation in local courts is not uniform at present,and different distribution standards are often applied to a case,resulting in different sentences in the same case,which seriously affects the judicial authority.As to the problem of "no legal basis" for unjust enrichment,there are two main viewpoints in China's theoretical circle: one is that the plaintiff who suffers losses should bear the burden of proof,and the other is that the defendant who gains benefits should bear the burden of proof.At present,European countries have different regulations on the burden of proof “without legal basis".Most countries believe that the burden of proof should be borne by the plaintiff,such as France,Austria,Portugal,Scotland,etc.Our country has no separate law to stipulate the burden of proof for unjust enrichment.China's unjust enrichment system is too simple,which makes it very difficult to deal with the increasing cases of unjust enrichment year by year.The problem of the burden of proof of unjust enrichment "without legal basis" needs to be clarified.As for the understanding of "no legal basis",the constitutive elements of unjust enrichment can be divided into: "one party gains interest","the other party suffers loss","there is a causal relationship between benefit and damage" and "no legal basis".The element of "no legal basis" is the lack of legal legitimacy of the parties' profits and the core issue of unjust enrichment.Disagreement is most likely to occur when judging whether the plaintiffs' claims constitute unjust enrichment.There is unity and non-unification in the determination of "no legal basis".All unjust enrichment should have a unified concept as the basis,can make a unified explanation to all unjust enrichment,and this is the viewpoint that unity holds?The unification concept put forward by the scholars who advocate the unity mainly includes the theory of fairness,the theory of claims,the theory of rights and the theory of legal relations.However,according to the statement of non-unification,all kinds of unjust enrichment have different basis and can not be unified.Instead,it should be judged separately according to various unjust enrichment situations and interpreted separately for "without legal basis".The non-unification is in the general position in Germany and Taiwan.As for the rules of distribution of the burden of proof,the main theories are the theory of factum probandum,the theory of classification of legal elements,the theory of danger field,and the theory of interest measurement.The theory of classification of legal elements refers to the distribution of the burden of proof by different categories according to the substantive law.The German scholar Rosenbergs Die Normentheorie is the representative of this kind of theory.Rosenbergs Die Normentheorie has the greatest impact on litigation theory and trial practice in Germany and Japan,and it has long been dominant.At present,China's civil burden of proof is based on Rosenbergs Die Normentheorie,establishes "who advocates and who provides evidence" as the general distribution rule,takes the reversion of burden of proof as the exception of the general distribution rule,and takes into account the discretion of individual cases.In this paper,it is proposed that unjust enrichment is very extensive and varied in practice.Regardless of the complexity of unjust enrichment,it is simply applied to all unjust enrichment by a rule allocated to the plaintiff or the defendant,which cannot guarantee the fairness of the case.In order to ensure the scientific nature of the distribution of the burden of proof,this paper uses the non-unification for reference and classifies unjust enrichment into benefit unjust enrichment and non-benefit unjustenrichment according to the actual reasons of unjust enrichment.It is also the most commonly used classification of unjust enrichment in national legislation and academic circles at present.On this basis,this paper uses the works of professor Wang zejian for reference,and further elaborates the non-benefit unjust enrichment into the unjust enrichment without the payment purpose from the beginning,the unjust enrichment without the payment purpose afterwards and the unjust enrichment with unrealized payment purpose.However,non-benefit unjust enrichment can also be concretized into unjust enrichment of right infringement,unjust enrichment of claim and unjust enrichment of expense at the entity level.According to the types of unjust enrichment,this paper discusses the distribution of the burden of proof for elements with "no legal basis".This paper argues that in the case of unjust enrichment,the unjust enrichment is to eliminate the benefit of the defendant,and the payment is made by the plaintiff.As to why the payments are made,the plaintiff know far more about the facts than the defendant.Secondly,the payment behavior has already occurred,which is generally deemed to be justified.Considering the security and stability of the transaction,the plaintiff should have sufficient evidence to overturn the payment that has occurred.Finally,the plaintiff's burden of proof also conforms to the general rule of "who advocates,who provides evidence".The idea of equity is considered while affirming that the plaintiff has the burden of proof for benefit unjust enrichment “without legal basis”.In order to reduce the proving difficulty for the plaintiff,the defendant should make a specific and detailed explanation on the legal basis of the benefit obtained by the plaintiff,and then the plaintiff makes a specific defense against the defendant's statement.In non-benefit unjust enrichment,the burden of proof should be differentiated by situation.The defendant is closer to the evidence than the plaintiff because of the non-benefit unjust enrichment caused by the defendant's behavior.At this time,it is unfair to apply the theory of classification of legal elements that the plaintiff should bear the burden of proof "without legal basis".However,it is more appropriate to use the theory of danger field,the theory of interest measurement,the difficulty of burden of proof and the distance of evidence to determine the burden of proof "without legal basis" borne by the defendant.In thecase of other non-benefit unjust enrichment that is not caused by the defendant's act,it is caused by the act or event of another person other than the defendant or by legal provisions.According to Rosenbergs Die Normentheorie,according to the general rules of distribution of burden of proof in China,the plaintiff should bear the burden of proof for the element of unjust enrichment "without legal basis".