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Research on the Allocation System of "No Legal Basis" Burden of Proof in Unjust Enrichment

Author: ZhuXiaoZuo
Tutor: ZhangYuRun
School: Anhui University
Course: Legal
Keywords: unjust enrichment without legal basis allocation of burden of proof
CLC: D913
Type: Master's thesis
Year: 2011
Downloads: 25
Quote: 0
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Abstract


Unjust enrichment is an ancient private law system, and its development has been more than two thousand years of history. Various countries and regions are very concerned about study on theory and practice of the modern unjust enrichment system. The 92nd article of the General Principle of Civil Law of the People’s Republic of China defines unjust enrichment as:If profits are acquired improperly and without a lawful basis, resulting in another person’s loss, the illegal profits shall be returned to the person who suffered the loss. The study on controversy about unjust enrichment focuses primarily on the allocation of the burden of proof of constitutive requirements of unjust enrichment. However, the considerable controversy in theory and practice focuses on that there is no legal basis of unjust enrichment to decide which party should bear the burden of proof.Lawsuit of return of unjust enrichment refers to the benefit of one party causes the losses of the other party without legal reason, and then the damaged one request the return from the beneficiary’s unjust enrichment. The key of this suit is which party should bear the burden of proof without legal basis. Combined with our current status of the allocation of the burden of proof, whether the allocation of the burden of proof without legal basis should be "a cut", which party should bear the burden of proof without legal basis, what is the basis of the allocation of the burden of proof without legal basis? Meanwhile the allocation system of the burden of proof of unjust enrichment without legal basis of other countries should be investigated, and after comparison, during our future study on the burden of proof of unjust enrichment without legal basis what is worth learning is that firstly influence that the policy of the substantive law has on the allocation of the burden of proof without legal basis should be payed attention to, and the second is to try to alleviate the burden of proof on any party without legal basis.The primary allocation spirit of payment type of unjust enrichment is that the prosecutor should bear the burden of proof. However, sometimes according to different circumstances of different cases, based on the principles of fairness and good faith, combined with the capacity of burden of proof of both parties, and so on, the defendant may bear the part burden of proof. Non-payment type is also divided into infringement of the rights of others, unjust enrichment based on the damaged people’s payments of acts, and based on acts of outside behavior. For unjust enrichment against the rights of others the defendant generally bears the burden of proof with a legal basis, because for the non-payment of unjust enrichment outside of payment behavior of the damaged people, the prosecutor generally bears the burden of proof about the defendant’s profit without legal basis. Meanwhile, for unjust enrichment based on acts resulting from events outside of behavior, the defendant generally bears the burden of proof with legal basis. For the special cases of unjust enrichment with one party’claiming the non-payment and the other party’s claiming the payment, the requestor should still provide initial proof, but his burden of proof may be lessened properly.

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CLC: > Political, legal > Legal > UNIVERSITY > China and France
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