不当得利“获利无法律依据”要件证明规则研究

司法实践中,对不当得利“获利无法律依据”要件证明规则存有较大分歧。(2018)最高法民终314号案例具有典型意义。根据通说法律要件分类说中之规范说,该要件属不当得利请求权发生(产生、形成)规范,应由请求权人(原告)承担证明责任。根据待证事实分类说,划分积极事实与消极事实的依据应是具体案件事实而非“获利无法律依据”的抽象表述,给付型不当得利中待证事实是“给付原因消灭的具体因由”,具有唯一性、排他性,属积极事实,应由请求权人证明。类型化对待说之合理性值得商榷。该要件之证明范围并不要求排除一切可能,请求权人仅证明自己主张的原因即可。二审法院的判决正本清源值得肯定。程序法困境之根源系实体法未明定“占有的推定效力”。

Study on proof rule of conditions of “profit without legal basis” of unjust enrichment: a case commentary of(2018)No.314 of Civil Final Appeal of Supreme People’s Court

There is greater disagreement on the proof rule of conditions of “profit without legal basis” of unjust enrichment in legal practice. The case of(2018)No. 314 of Civil Final Appeal of Supreme People’s Court has typical significance. According to the norm theory in general theory of classification of legal conditions, the condition belongs to the norm of occurrence(generation, formation)of claim right, whose burden of proof should be borne by the claimant(plaintiff). According to the classification theory of facts to be proved, the dividing basis of positive fact and negative fact should be the specific fact of case rather than the abstract representation of “profit without legal basis”; and the facts to be proved in unjust enrichment of payment type are “the specific reasons of elimination of reasons for payment”, which has uniqueness, exclusiveness and belongs to positive fact that should be proved by the claimant. The rationality of theory of typification treatment is worth discussing. The scope of proof of the condition does not require the exclusion of all possibilities, and the claimant needs only to prove the reason of his or her claim. The judgment of the court of second instance deserves affirmation for its pursuing of origin and clarifying of source. The root of dilemma of procedural law is that the substantive law does not determine the “presumptive effect of possession”.