The Structure And Function Of The Law Of Restitution From The Perspective Of Comparison Method

In civil law,the gauge group of "unjust enrichment" adjustment is from the perspective of legal fact,as the Law of Unjust Enrichment is defined as the consequent legal effect of the "unjust enrichment" subsumtion based on legal facts.However,In Anglo-American law,whose traditional classification of the proceedings is in accordance with remedies,the gauge group of "unjust enrichment"adjustment is from the perspective of "legal effect",as it is based on the legal fact of"restitution" subsumtion originally as law effect.As it emphasizes on remedies for reinstatement and restitution,the Law of Restitution is often bracketed with Contract Law and Tort Law in the representation of proceedings and remedies.And the Law of Restitution has become the third law of importance,second to Contract Law and Tort Law,in the domain of obligation law.Compared with Contract Law and Tort Law,the Law of Restitution is a relatively new subject,which of course arouses many controversies on relative issues.The settlement to those controversies is to examine the realities and development process of the Law of Restitution in order to excavate disciplinary hidden behind specific rules,such as structure,function,operation logic and internal and external tension,etc.,rather than just explain legal concepts,legal rules,legal principles and technical requirements of the Law of Restitution.In the Law of Restitution,relevant legal system and relevant legal norms are accumulated in form of empirical methods along with history development,so they are of strong historical continuity.Therefore,only from the perspective of law history can the interpretation of Law of Restitution be reasonable and only from that perspective can relevant norms and concept connotations be correctly understood.The reappearance of the emergence and development of the general principle of unjust enrichment in Anglo-American Law aims to explore the source and reason of Law of Restitution.Meanwhile,after interpretation of the specific content of the elements which is composed of the general principle of unjust enrichment in modern law,particular its value and practical significance,this thesis puts forward positive elements and negative elements bipartite structure division in order to better explore the differences and relations between various elements and their effect on the essence and appearance of the general principle of unjust enrichment.Therefore,the linkage mechanism of infrastructure configuration and system function of the Law of Restitution should be taken into consideration in the research.In order to realize or reflect operating mechanism and value principle of the Law of Restitution,in the process of exploring inherent defects of its existing system structure,rearrange its internal connection and logic by extracting most representative functions which can best embody the essential characteristics of all types of unjust enrichment.On this basis,that how the Law of Restitution coordinates with other private law systems to achieve its specific functions and effects in the whole private law system shall be inspected from the perspective of system function.The restitution of unjust enrichment in the case of invalid contact aims at making contract parties retrieve due interests beyond the range,taking as a a good complement to contract remedies when the expectation interests and reliance interests are unviable;the restitution of unjust enrichment in the case of necessity,from the perspective on negative enrichment of managees from other’ s person managing his personal affairs,aims at giving back the necessary expenditures to managers and realizes effective compatibility with debt of negotiorum gestio;the restitution for wrongdoings,aims at making wrongdoers disgorgement interests which is caused by their wrongdoings,and it effectively makes up the missing angles of remedies mechanism that focuses on compensation.Pursuant to intelligence principle,abilities are different,but the pursuit of ideal standard is the same.The inherent cultural character and independent development path of Anglo-American law create its unique way of thinking and legal value model,in which law is the reflection of common experience instead of product of logical deduction,hence judicial experience of the past is often applied to case of present without placing the case in abstract system or accurate logic frame.For civil law scholars,it is difficult to get rid of the inherent deductive reasoning from abstract law norm to specific case fact.While duly emphasizing on rationality and logicality of law,they denounce that Anglo-American law lack its kernel and system.Actually,this is a natural bias or habitual misunderstanding.In sense of function comparison,Anglo-American law and civil law are faced with the same problems and needs,and solutions are provided respectively via rights demarcation and action differentiation by virtue of traditions and historical accidents.They are quite different in problem handling technology yet same in function play.Setting Anglo-American Law of Restitution as starting point and making textual criticism on caparison while breaking the restriction of law concept,system structure and way of thinking,this thesis makes attempt to apply civil law method to the interpretation of Anglo-American law in order to discover different solutions in different laws.Besides trying overcoming national complex preference to form to enhance the understanding of Anglo-American Law of Restitution internal structure,operating mechanism and value function as well as the understanding of similarities and differences between these law systems,the thesis also tries to build a bridge of communication and understanding over Anglo-American Law and civil law.Providing reference ideas to construct future unjust enrichment norm in accordance with China’s actual situation by via the absorption of nutrition from Anglo-American Law of Restitution on civil law demand.