The Formation And Development Of The Law Of Unjust Enrichment

The law of unjustified enrichment, which has long history, is one of the foundations of the law of obligations.The construction and the application scope are very important to the function of the civil law system as a whole and a extremely important issue in jurisprudence of the civil law. The civil law system of China has nearly completed in recent years, however, the doctrine research on the unjustified enrichment law is still very weak. The research on the unjustified enrichment law must be strengthened so that we can complete the legislation of civil law and instruct the judicial practice.The dissertation used the method of historical analysis and comparative law to analyse the historical resource of the formation of the law of unjustified enrichment and its development in the acient and morden times. The dissertation also.researched the content and structure of the law of unjustified enrichment with the civil legislation of China from a comparative law perspective. Besides the introduction and the conclusion, the dissertation included thirteen chapters. The chapter one to seven analysed the history of the law of unjustified enrichment and its formation and development in the continental legal family, common law legal family and Chinese law. The topic of the first chapter was the resource of the law of unjustified enrichment, analysed all kinds of codictio in Roman law from the early writ of condictio and the relation between the condictio and morden unjustified enrichment law. The second chapter analysed the idea and rules of unjustified enrichment law of medieval, from the end of classical Roman law era to the formation of natural law school in recent times, in European continent, and discussed the development of unjustified enrichment from the different perspective of Roman law, canon law, and customary law. The third chapter researched the influence of natural law school on the law of unjustified enrichment law the most famous natural jurist Hugo Grotius' idea of unjustified enrichment and his influence on the Dutch law. The fourth chapter analysed the unjustified enrichment in codification times in 19th century in the countries of continental legal family, including France, Italy, Netherlands, Germany, Austria, Switzerland, The Soviet Union-Russia, and Japan. The topic of the fifth chapter was the history and the status quo of the law of restitution and unjust enrichment in the commom law legal family countries, including the United Kingdom and the United States. The sixth chapter anaylysed the most recent development of the law of unjustified enrichment in the process of the harmonization of European private law. The seventh chapter focused on the history of unjustified enrichment law in China.On the foundation of the research from the first chapter to the seventh chapter, the chapter eight to thirteen mainly analysed the inner structure of the law of the unjustified enrichment and the relation between it and other systems of patrimony law from the comparative law perspective. The eighth chapter focused the elements of general rule of unjustified enrichment, such as enrichment, at the expense of, causation, and no legal basis. The nineth chapter discussed two specific unjustified enrichment claims:condictio indebiti and the unjustified enrichment among three parties. The tenth chapter concentrated on the system of defences of unjustified enrichment, which can be used by the enriched party to be exempted or mitigated from his liability of restitution. This chapter analysed seven kinds of defences: disenrichment, knowingly performance without basis, performance before the stipulated time, performing a moral duty, the bone fide enrichment has to perform to the third party, illegality of the basis, and prescription. The eleventh chapter analysed the legal effect and the scope of restitution of the enriched party in unjustified enrichment law. The twelfth chapter analysed the status of the unjustified enrichment claims in the civil law system and the borderline of unjustified enrichment law, this chapter also discussed the relation betweeen the claim in unjustified enrichment law and claims in other civil law system such as property law, contract law, tort law and negotiorum gestio. The thirteenth chapter discussed the burden of proof in the law of unjustified enrichment and the power to explanation of the judge in the unjustified enrichment actions. Lastly, the dissertation gave some advice on the future legislation of the Chinese unjustified enrichment law in the conclusion.