Research On The Institution Of Unjust Enrichment Of Infringing On The Rights And Interests

The unjust enrichment of infringing on the rights and interests, as a modern times conception, has aroused a lot of scholar's attentions in many countries. In our country, General Principles of the Civil Law makes a recapitulative provision about the unjust enrichment. But there is not a separate provision about the unjust enrichment of infringing on the rights and interests, it has confusion in practice. To arouse scholar's attention on this type of unjust enrichment, there are specific analyses about the unjust enrichment of infringing on the rights and interests. After that about how to perfect this institution, there is advice in this article. This article contains four parts: the types, the component parts, the restitution and the law-making.In the first part, I address the types of the unjust enrichment of infringing on the rights and interests from two aspects. One is on the basis of the beneficiary's subjective will. If the beneficiary is in malice, there are controversies about structure of the unjust enrichment. In this article, I admit it. About the rationality of existing, it is on the basis of system. It belongs to the impersonality matter not in subjective. Admitting the unjust enrichment of infringing on the rights and interests could spread the function of the unjust enrichment. Either in theory or in practice, it will directly influence the type and content about the legal relation between parties. The other is on the basis of the objection. Infringing on property rights, intellectual property, and personality rights form this type of unjust enrichment. Infringement on property rights mainly has two types, one is dispose with no authority, and the other is use with no authority. The actor benefits from infringing on other people's intellectual property. This benefit disobeys the ascription. The actor should take relevant liability. Personality rights do not have equation of property on its own. However some kind of use will bring the obligee some economic interests. Infringing on it will form the unjust enrichment of infringing on the rights and the interests. For example, take someone's image, compellation, voice, or privacy to do business without authorities.The second part is about the component parts. There are three component parts, one is obtaining interests in the way of infringing on other's rights, and another is someone's damages because of the infringement, the third is the interests disobey the rights attachment. The particularity of this type of unjust enrichment is that the actor obtains interests in the way of infringing other's rights. There are two conditions about this action. One is hinder or restricts the obligor's rights, the other is obtaining interests on the basis of other people's rights with no authorization, and these actions restrict other's rights. Obtain interests is very important in the component parts. The essence of damage refers to an impersonality fact. In general, the last part is obtaining interests with no legal reasons.The third part is the analysis of the right of requesting return of the unjust enrichment of infringing on the rights and interests and the restitution extension. As a part of the request right of creditor's rights system, it has a connection with others. In this article, 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. In the article, I analyze it from the beneficiary's subjective will.In the fourth part, I bring forward some advices about how to perfect the system in law. The law makes a recapitulative provision about the unjust enrichment. But there is not a separate provision about the infringement of rights and interests unjust enrichment; it has confusion in practice. Few people claim their rights according to this system, and the courts barely use it. In this article, I bring forward some advices from four aspects: legislative spirit; legislative rules; system form; system content.