摘要： 请求权基础规范的识别对于案例分析和文书写作、案件事实证明和证明责任分配、民法学说发展和立法完善均具有重要意义,其意义不限于某种特定的案例分析方法或写作体裁。在民事裁判中,应区分请求权基础规范与非请求权基础规范,应区分半请求权基础规范与特殊请求权基础规范。《民法典》中的请求权基础规范有一些典型表达句式,但仅凭是否采用典型句式无法判断条文是否为请求权基础规范,典型句式只能作为寻找的重要线索和论证的初步依据。能够通过句式来判断的主要是“依法请求”“依法承担”或“依照法律规定”等,采用这种句式的条文都不是请求权基础规范。除条文句式外,在请求权基础规范识别中,需关注条文之间的关联衔接,需结合立法历史探寻立法者的价值判断结论,不能抛开立法历史而以规范目的作为判断的核心理由。

关键词: 请求权基础, 请求权基础规范, 半请求权基础规范, 规范识别, 规则表达

Abstract: The identification of claim-based norms is of great significance for the analysis of cases and the writing of documents, the proof of facts in cases and the distribution of the burden of proof, the development of civil law doctrine and the improvement of legislation.Its significance is not limited to a particular method of case analysis or genre of case analysis report writing.In civil adjudication, a distinction should be made between claim-based norms and non-claim-based norms, as well as between semi-claim-based norms and special claim-based norms.There are some typical expressions of claim-based norms in the Civil Code, but it is incorrect to judge whether a provision is a claim-based norm only by whether it adopts a typical syntax, which can only be used as an important clue for searching and a preliminary basis for argumentation.What can be judged by the syntax is mainly ‘claim according to law’ or ‘assume according to law’ or ‘according to law’, etc., and the provisions adopting such syntax are not claim-based norms.In addition to the syntax of the provisions, in the identification of claim-based norms, it is necessary to pay attention to the connection between the provisions, and it is necessary to explore the value judgement conclusion of the legislatwre in the process of the legislative history, and it is incorrect to take the purpose of the norms as the core reason for judgement regardless of the legislative history.

Key words: Basis of Claim, Claim-based Norm, Semi-claim-based Norms, Norm Identification, Rule Expression