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A Theoretical Study on the Concurrence of the Claim for Unjustified Benefits and the Claim for Right Infringement

Author: JinZhu
Tutor: YinTaiShun
School: Yanbian University
Course: Civil and Commercial Law
Keywords: Infringement Unjust enrichment Concurrence between
CLC: D913
Type: Master's thesis
Year: 2009
Downloads: 99
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Abstract


Infringes upon the rights and interests constitute unjust enrichment for the modern theory of civil law generally recognized. Our Law does not infringe the provisions of the unjust enrichment of the rights of others, and how to resolve the competing issues of infringement and unjust enrichment, not clearly defined in the legislation. Based on unjust enrichment specification mode, unjust enrichment can be divided into payment type unjust enrichment and non-payment of unjust enrichment. INFRINGEMENT unjust enrichment of non-payment of unjust enrichment, the most important one. Germany, Japan and Britain, and America Comparative Study of the legislation, which will INFRINGEMENT unjust enrichment concept is defined as: legal reasons, acts violate the legal rights and interests, the interests of another person injured , should assume responsibility for the return of the obligations. The main types of infringement of intellectual property or personality rights to obtain benefits not entitled to dispose paid to sell or consumer others 'things to acquire benefits by unauthorized rental of others' things and gain. Civil law and common law are some differences, but the two legal systems in terms of history and theoretical basis of unjust enrichment unjust enrichment system function and specification purposes. The return of the right to request the theoretical basis of unjust enrichment, the constituent elements of the unjust enrichment against the rights of others can be summarized in the following three aspects: INFRINGEMENT interests; damage caused by others; without legal causes. The constitute unjust enrichment INFRINGEMENT is obtained due to the beneficiary against the exclusive rights of the rights holders interests, but the legitimacy of the interests of the lack of ownership. INFRINGEMENT unjust enrichment, shall constitute infringement of wrongdoing, but not the fault of the actors. The difference between the two stems from the difference of the tort system and Unjust Enrichment System specification purposes. Tort system aims to fill the relative damage that may arise directly, rather than when the purpose of the Enrichment System is that to return suffered by the beneficiary interests, rather than fill the relative loss. So-called unjust enrichment to the return of the right to request compensation for infringement claims competing, is on the one hand against the rights of others to make others suffer an infringement; On the other hand, the tortfeasor may be affected by their acts of interest, which is subject The interests or illegal, or that the lack of ownership interests legitimacy may constitute unjust enrichment. That is a natural fact, based on different legal judgment, constitute two different legal fact that tort law facts and legal facts of unjust enrichment, resulting in two different relationship between debt, Torts and improperly derived Lee's debt. Recognize unjust enrichment return of competing claims and compensation for infringement claims, does not lead to the specification and loss of function of the tort system, on the contrary contribute to the coordination of unjust enrichment system and the tort system function for the property transfer relationship thorough means of regulation, more fully realize the civil law to safeguard the fundamental concept of fairness and justice. For solving the problem of unjust enrichment restitution and compensation for infringement claims competing, the law does not expressly limit the victim's choice between the two types of claims, the victim may be free to choose according to the specific circumstances of the case to its more favorable way proceedings request. Unjust enrichment and violations of the legal effect of the system, the right to request compensation in the event of infringement and unjust enrichment to the repatriation of the right to request competing, according to the autonomy of the parties can choose the exercise of any of the claims for damages or benefit back, both are independent from each other. Has reached the purpose of a request exercise of the right, another request to extinction, damaged people can not exercise two requests of profit.

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