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Proof Of Facts That Are "unlawful" Essentials In Unjust Enrichment Dispute Litigation

Posted on:2019-10-17Degree:MasterType:Thesis
Country:ChinaCandidate:Y K ZhuFull Text:PDF
GTID:2436330548952134Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The retrieval data on the civil causes of unjust enrichment disputes undeniably reveal the fact that the number of unjust enrichment disputes is increasing rapidly with the development of economic activities.And obviously,no matter in legislation,judicature or theoretical research,our country is not ready to accept this phenomenon.In this paper,the author makes a specific analysis of different types of unjust enrichment,focusing on the elements of "no legal basis" and the corresponding facts of specific elements in the case.This paper probes into the burden of claims and burden of proof that both parties should bear,and puts forward their own views on the different modes of proof of improper enrichment and non-payment.Further distinguish the subjective and objective significance of the burden of proof to allocate the burden of adverse consequences in the case of uncertainty.The author hopes this article not only can be helpful to point out the direction for the parties in the improper enrichment dispute attack defense,but also provide a certain reference for the judge through his own opinion.The first part has carried on the preliminary explanation to the improper enrichment dispute essence.The norms of improper enrichment are not only the norms of the formation of the right of claim,but the exercise of which is bound to have a certain impact on the interests of the relative parties.In order to avoid the unstable state of civil legal relations,the way of assigning the burden of proof to the claimant has become a good means of checks and balances.However,the distribution of burden of proof can not be adequately solved according to the existing substantive strict law,because of its characteristic of difficulty of the proof of "no legal basis" in the dispute of improper enrichment.Therefore,the author believes that different types of disputes should be divided into specific analysis.In fact,the improper enrichment dispute litigation has not received deserved attention in the practice in our country.Based on this opinion.The author will analyze this question concretely in the second part.The existing legal provisions on improper enrichment in our country only set up a preliminary regulatory framework,which leads to the judicial practice of this kind of disputes are difficult to cope with have greatly damaged the exercise of the parties' right to return improper enrichment.In order to reverse this situation,we must strengthen the discussion on the relevant basic theories of unjust enrichment system.So in the second part and the third part,the author first discusses the basic theory of the ultimate facts,and compares the difference and relation between the ultimate facts and other related concepts combining the actual situation of the case of unjust enrichment dispute and clarify the actual scope of the specific elements corresponding to the four elements stipulated in the norms of improper enrichment.Then,the author makes a concrete discussion on the claim reason fact or the defense fact that the two parties should claim on the basis of each type of improper enrichment of the pay type and the improper enrichment type of the non-payment type.It is considered that the facts corresponding to the first three elements of improper enrichment are generally not difficult to claim,only that the elements of "no legal basis" belong to the "evaluative elements",which are the result of the evaluation of facts by law,and do not point to specific facts.Therefore,the parties should advocate "the facts of basic elements of evaluation" corresponding to "no legal basis" as an evaluative element.The forth part and the fifth part is about the double meaning of burden of proof.This part discusses the responsibility of the two parties to attack the defense in different types of unjust enrichment disputes.and under what circumstances such a shift of burden of production would occur and the question of who should bear the adverse consequences when the presentation of evidence made it difficult for the judge to form definitive evidence or it hard to distinguish the facts.The author thinks that the reason why the burden of production shifts back and forth in the specific litigation is based on the subjective burden of proof and the objective burden of proof has been preset by the law and will not be transferred at the beginning of the lawsuit,which is a kind of responsibility of result.For the proof of "no legal basis",the author thinks that the existing theories,whether the classification of facts to be proved or the classification of legal elements as general theory,are difficult to solve.Therefore,a new "evaluative element theory" is put forward,which can be divided into the basic facts of evaluation and the facts of obstacles of evaluation.The plaintiff and defendant bear the subjective and abstract burden of proof and the responsibility of objective proof respectively.In the last part of the conclusion,the author discusses the requirements of the theory of essential facts to the civil law,which is the norm of adjudication,and points out that the legislation of unjust enrichment is not perfect at present in our country.It needs to combine the burden of proof distribution norms to determine the object of proof of the parties in a specific case,supplemented by the interpretation of the obligations of the judge to promote the defense of the parties to attack,and guide the judge to adjudicate.
Keywords/Search Tags:unjust enrichment, ultimate facts, burdn of claims, burden of production, burden of proof
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