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Research on Non-giving of Unjust Enrichment

Author: WanMingYuan
Tutor: SunXueZhi
School: Jilin University
Course: Civil and Commercial Law
Keywords: Non-unification Classification Non-giving of Unjust Enrichment Component Parts Legal Effect
CLC: D913
Type: Master's thesis
Year: 2010
Downloads: 119
Quote: 1
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Abstract

The system of unjust enrichment is a traditional and constantly renewed system in the field of civil law. The non-giving of unjust enrichment, as a modern times conception, has aroused a lot of scholar’s attentions in many countries. Unfortunately, unjust enrichmen is briefly regulated in the legislation of China Mainland. With only one article on unjust enrichmen, neither General Principles of the Civil Law nor newly published The Draft of Civil Law makes concrete, specific and operative provisions on the constitution and effect of unjust enrichmen. Still more there is not a separate provision about the unjust enrichment of non-giving, it has confusion in practice. Therefore it is necessary to improve the legal status of the system of unjust enrichment in our civil law to reinforce its practical function. To distinguish between giving and non-giving of unjust enrichment on this type of unjust enrichment, there are specific analyses about the unjust enrichment of non-giving. After that about how to perfect this institution, there is advice in this article. This article contains five part: the origin and the foundation, the types, the component parts, the legel effect, a comparison of the giving of unjust enrichment and non-giving of unjust enrichment.In the first part, I analyses the origin and the foundation of non-giving of unjust enrichment. In the origin of non-giving of unjust enrichment, it discusses the development of unjust enrichment in civil-law system and the sources of unjust enrichment in common-law system. Unjust enrichment originated from Rome Law. In France, general claim of unjust enrichment restitution is established by doctrine and case law. French Civil Code makes no general provisions on unjust enrichment except non-debt liquidation. The second draft of German Civil Law Code not only stipulates the general principles, but also makes non-giving of unjust enrichment. In common law system, unjust enrichment is applied as the basis for restitution law, mainly to modify the traditional and rigid contract law and tort law. In the foundation of unjust enrichment, in the foundation of unjust enrichment, there are two theories about the base of unjust enrichment: the theory of unification and the theory of non-unification. The theory of integrity insists that all sorts of unjust enrichment have a basis in common. The theory of non-integrity starts from the classification of the factual cause of unjust enrichment and advances to discuss the base of all sorts of unjust enrichment. This article uses the theory of non-integrity, to highlight the unjust enrichment because of a more standardized process and its purpose, more can clearly identify its constituent elements, and on this basis the type of system will inappropriate benefit payment type into non-giving of unjust enrichment and the giving of unjust enrichment. The non-giving of unjust enrichment is the most flexible and open part of the unjust enrichment. This classification simplifies the process of the application of unjust enrichment.The second part is about the sort of non-giving of unjust enrichment. In general, there are three types, unjust enrichment based on the behavior of beneficiary, unjust enrichment based on the provisions of law and unjust enrichment based on the incident. This paper focus on the unjust enrichment based on the behavior of beneficiary and the interests disobey the rights attachment. The interests disobey the rights attachment is the theoretical principle for the unjust enrichment of infringing on the rights and interests, i.e. criterion for judgement is whether to have the interests validity. It conforms to the standard function of the unjust enrichment. Then the interests disobey the rights attachment is divided into Infringing on property rights, intellectual property, and personality rights form this type of unjust enrichment, I will discuss them separately. In unjust enrichment based on the provisions of law, I will mainly address the accretion. According to the provision of the unjust enrichment, the aggrieved party who lost the rights because of the accretion will acquire the right of claim of the unjust enrichment.The third part is about the component parts of non-giving of unjust enrichment .And then it discusses the same and different standards of the giving of unjust enrichment and non-giving of unjust enrichment and proves non-giving of unjust enrichment is the basic from the unjust enrichment. Specifically, the benefit and the damage of the giving and non-giving of unjust enrichment is a fundamental unity. The benefit does not mean gross property benefit. The benefit is obtaining interests in the way of infringing on other’s rights. The damage as one of the constitutive elements of unjust enrichment differs from the damage in the law of damages, and the damage in the scope of unjust enrichment restitution. It is a difference between the giving of unjust enrichment and non-giving of unjust enrichment from causal relationship between the benefit and the damage and the lack of legal foundation. In the causal relationship between the benefit and the damage, views of direct reason and result and indirect reason and result are analyzed. In the lack of legal foundation, non-giving of unjust enrichment is the interests disobey the rights attachment.The forth part is the discussion about the legal effect of non-giving of unjust enrichment. In this article, I will discuss the content of the right of requesting restitution of the unjust enrichment of non-giving, inculding the client of the debtor and the ways the return of non-giving of unjust enrichment. I will discuss the relationship between the right of requesting restitution of the unjust enrichment of infringing on the rights and interests and infringement act. They are different. How to use them and make it maximum is very important. The parties should be authorized the right to choose the better one for them self. The beneficiary’s subjective will affects the extension of restitution. In many countries as German, Japanese, French, and Italy, the civil code prescribes it on this basis. The liability will aggravate if the beneficiary is in malice. And then the emphasis is to definite the return responsibility of the benefit gainer.The fifth part is a comparison of the giving of unjust enrichment and non-giving of unjust enrichment from the legal effect and the component parts. It is indicated that their differences are not absolute and the certainty of legal logic. We can not deny the universal principle of the system of unjust enrichment. The function of the giving of unjust enrichment lies in the correction of the change of property and the emphasis of the relationship of giving. While the non-giving of unjust enrichment stresses on the protection of rights and interests. The differentiation of the two also involves the third person’s profit.

Research on Non-giving of Unjust Enrichment

Abstract

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