Unjust Enrichment In Private International Law

Unjust enrichment is one of the basic institutions in private law, boasting a long history and profound content. Compared with other legal institutions of civil nature, unjust enrichment is particularly striking in terms of its considerable discrepancy among legislations of various countries. For this reason, unjust enrichment has been described as "an ever-changing-elf in comparative law". In this light, it is undoubtedly of great academic and practical value to research on the topic of the marriage of unjust enrichment and private international law. Hence this thesis centers around questions of unjust enrichment in the perspective of comparative law and private international law. Apart from the Introduction, the thesis is divided into 8 chapters, totaling 250,000 Chinese characters approximately.The opening part is "Introduction", which outlines the significance of the study of the current topic, surveys the status quo in this respect and, lists the approaches that will be employed in the thesis.Chapter One is entitled "Definition, History and Legal Philosophy of Unjust Enrichment", consisting of three sections as follows: Section One elaborates on the definition of unjust enrichment and its function as a legal institution; Section Two adumbrates the history of unjust enrichment from the very beginning to its latest development, grasping the thread of the whole process of over 2,000 years from an angle of comparative law. Suffused with the notions such as "equality" and "justice", unjust enrichment assumes a close relationship with nature law, whose origins so far as we can trace it, surfaced in the works of Aristotle who distinguished the "restitutionary just" from "distributive just" in Nicomanchean Ethics. Like an invisible hand, the rules of nature law have an incessant bearing on the development of unjust enrichment even in modern society where legislation has become unprecedentedly advanced. It follows that Section Three examines the institution of unjust enrichment at the level of legal philosophy.Chapter Two is "Institution of Unjust Enrichment in Civil Law Countries", which analyzes German and French law in this field respectively. As German adopted the Doctrine of the Independence of Juristic Act of Right in rent (Die abstrakte Natur der dinglichen Geschafte), the claim of unjust enrichment has a wider scope of application and a higher status in the entiresystem of civil law which provides an alterative remedy for the negative consequence of this Doctrine. Therefore, German Civil Code (BGB) sets up a unified institution of unjust enrichment upon which the Theory of Categorization (Trermungstheorie) is established. In this way, a complete and concordant legal system of unjust enrichment has been shaped gradually. Nonetheless, since the Doctrine of the Independence of Juristic Act of Right in rem is excluded by the French law, the application scope of unjust enrichment is comparatively narrower, and its status in civil law system lower accordingly. Within such a setting, French Civil Code fails to provide a unified institution of unjust enrichment, which stipulates but specific rules. What merits particular emphasis is that the demonstration in this Chapter is carried out from the perspective of comparative law, so that the conflict of laws between the two countries in this area is unfolded before us unambiguously.Chapter Three is entitled "Anglo-American Restitution Law". Unlike civil law, common law had been lacking in an independent institution of unjust enrichment for a long period. However, with restitution, a traditionally remedial relief growing into an independent cause of action, the foregoing situation has been changed significantly. Founded upon the principle of the reversal of unjust enrichment, restitution, in nature, is parallel to unjust enrichment in civil law. The law of restitution now assumes its equal footing to the law of contract and the law of tort, which transforms the structure of the Anglo-American law of obligations dramatically. In this sense, studying the law of restitution per se is more than necessary. Section One of this chapter outlines the definition and the basic elements of restitution; Section Two analyzes the two major categories of restitution respectively, viz. restitution for autonomous unjust enrichment and restitution for wrongs; and Sections Three makes a conclusive comparison among restitution law, German unjust enrichment law and French unjust enrichment law, adumbrating their distinctions in considerable detail.Chapter Four is "'Unjust Enrichment Rules in the Private International Law of Certain Countries". Based on the different status of unjust enrichment in their substantive law, certain countries falling in the two legal families are categorized into three groups, and the unjust enrichment rules in their private international law are spelled out one by one. The "Rome Convention II" proposed by the Commissions of European Community is introduced in Section Three where its relevant rules are carefully commented and discussed. Section Four takes asummary of the foregoing sections, attempting to sum up the positive experience as well as the negative one.Chapter Five is "Characterization of Unjust Enrichment Claims". Characterizing unjust enrichment claims has been established as one of the most difficult tasks for private international law lawyers. Section One discusses the general theoretic problems of characterization, to wit, its criterion and object where the author submits that characterization should be effected on the basis of the law of the forum; however, the court must not rigidly confine itself to concepts or categories of the lexfori. The lexfori will be characterized in accordance with its rules in a liberal manner, not insisting that all its technical requirements are complied with. The object of characterization is either case fact or conflict rules, and the process of characterization is the subsumtion of case fact as well as the interpretation of conflict rules. Taking the above contentions as the lodestar, Section Two elucidates the specific problems in characterizing unjust enrichment claims. In this Section, the author contends that the unjust enrichment claim should be characterized as a single issue instead of several in terms of its component elements and, unjust enrichment claim can co-exist with other claims.Chapter Six, the core of the thesis, is entitled "Choice of Law Rules for Unjust Enrichment". This Chapter contains three sections as follows: Section One comments on the feasibility of the specific conflict rules, namely, lexfori, personal law, lex loci, lex situs, law of the contract and law of the relationship as well. Section Two discusses the structure of the conflict rules for unjust enrichment and the approaches that should be employed. Grounded on the above sections, the author put forward a set of preferable choice of law rules with respective rules targeted at different unjust enrichment claims arising out of the different backgrounds, complemented with an elastic exceptive rule. Choice of law rules as this excels in its certainty, predictability and flexibility which is an ideal solution to the application of law for unjust enrichment claims.Chapter Seven is "Public Order Reservation and Renvoi in Determining the Applicable Law of Unjust Enrichment". Public Order Reservation is one of the basic doctrines in the conflict of laws which bears on the determination of applicable law of unjust enrichment significantly. Section One of this Chapter begins from exploring the reasons for the current divorce between academic accomplishments and judicial practice, and then moves to analyze the specific influence of public order on the cases of unjust enrichment involving foreign elements by commenting onrepresentative cases thoroughly. Section Two discusses the possible role of renvoi in this field, which draws a negative conclusion through a convincing demonstration.Chapter Eight, the closing one of the thesis, is entitled "Constructing Chinese Unjust Enrichment Legal Institution", which reflects the ultimate purpose of the study. This Chapter covers three sections: Section One sketches the history and current situation of unjust enrichment in Chinese substantive law; Section Two surveys those in conflicts law; and in Section Three the author put forwards suggestions for building a complete legal institution of unjust enrichment conforming to Chinese practical situation.