A Study On Core Categories Of Unjustified Enrichment:Focus On "No Legal Basis" And "Measure Of Recovery"

The main problem existed in China's system of the unjustified enrichment is the institutional structure and effect being ambiguous.The answer for problem is to return the research of the unjustified enrichment to the logical structure of its core category,which means,the key emphasis should be put on the judgment of “no legitimate basis”,which is one of the components of unjustified enrichment,and determining the scope of restitution in unjustified enrichment system.The focus of the latter research shall be on determining the returning scope of the goodwill beneficiary when they lost the benefit.From the perspective of comparative law,at present there are three solutions to identify the constitution “no legal basis”.First,the “general payment — property transfer” path of the Unity Theory.Second,the “modern payment — — payment purpose” path of the Type Theory.Third,the “general terms — — category classification” path of the Compromise Theory.The Type Theory is expensively adopted in the legal hermeneutics and judicial practice in China.However,the mistakes in the understanding and application of the theory led to a wrong mix of the Unity Theory and the Type Theory,which is the Mixed Theory.The Unity Theory believes that the payment based on the unjustified enrichment is equal to the general debt laws performance,and thus regards the direct transference of property between two parties as the core of the unjustified enrichment system.According to the theory,in extraordinary cases,a creditor might request the third party out of the unjustified enrichment relationship to return benefits,which will damage the transaction security protected by the Principle of Non-cause Real Right Act.The Type Theory defines the payment based on the unjustified enrichment as the modern payment,that is,combining the behavior with the purpose of the payment,and use the purpose as the criteria for judging that whether the benefit has legal basis or not.This theory considers the distinction and the abstract relation between the realright behavior and the creditor's right behavior as an important cause,supported by a whole set of the legal acts system as well as the reason theory behind the payment.Regarding the principle of unjustified enrichment: “nobody is allowed to benefit himself/herself at the expense of others” as the unified foundation of the unjustified enrichment system,the Compromise Theory adheres to confirming the meaning of“no legal basis” according to the actual situations.The unjust factors in Anglo-American law is this path's modern expression.The path provides a valuable reference for the recognization of “no legal basis” in China's unjustified enrichment system.China should adopt the Unity Theory,insisting on regarding “the direct transference of property between two parties” as the core and the fundamental component of the unjustified enrichment system and recognizing “no legal basis” of unjustified enrichment according to the actual situations with the inductive method.Our country current still does not have neither the necessity nor feasibility to transplant the Type Theory and “payment” concept of which.the Mixed Theory bred from the bluntly-transplant of the Type Theory and its “payment” concept will otherwise enhance the difficulties of the identification of the”no legal basis”.The Compromise Theory also sticks to the unity terms.However,its identification of the unjust factors matches with its own system of property law and differs greatly from the same in our country and thus lack of feasibility.Compared with the Type Theory and The Compromise Theory,the Unity Theory approach is more appropriate.It adopts the theoretical construction of the other two approaches,and adapts to the current legal system in China,and thus is a more feasible approach.The recognization of the Unity Theory should be based on the positive legal relationships of adjusting the economic transferring and judge whether benefit has legal basis from these legal relationships.The determination of the scope of restitution in unjustified enrichment system is still a legal loophole in our current legal system.Judicial practice and the legal hermeneutics have failed to fill the loophole.When losing the benefits,the goodwillbeneficiary is allowed to deduct the lost and merely return the existing benefits according to the principle of protecting the goodwill beneficiary in German law and American law.In regard to the specific protection model,German law takes “the unified right of defense” mode,while American law holds “the hierarchical right of defense” mode.The causality element is adopted by both the two models on the lost benefits deduction condition.The component “reasons for liability imputation”required by the American law is only applied restrictively and opposed by the prevailing doctrine in German.The combination of the strengths of the two modes provides a new picture for the lost benefits deduction,which should be used as a reference by our Civil Code.That means we shall adopt the principle of protecting the goodwill beneficiary and judge the lost benefits deduction in two phases.Firstly,by confirming the beneficiary “not knowing” the benefits “having no basis” to judge the“goodwill” unless the beneficiary has the intention or gross negligence.Secondly,consider the reasons attributable to the party and the causal relationship between the benefits and the lost as two elements to judge whether to deduct the lost benefits.The research on unjustified enrichment always need to react on the legislative design of the composition and restitution of unjustified enrichment in current civil code.The article 122 of General Rules of the Civil Law of the People's Republic of China provides the general terms of unjustified enrichment,however,it neglects the setting mode of general terms,and has great deficiencies in the normative content.Having reviewed the “single general term mode” of German law and “composite general term mode” of civil law in Soviet Union,this paper proposes that General Rules of the Civil Law of the People;s Republic of China should take the Composite Mode.Three excluding causes: illegal cause performance,payment based on moral obligation as well as knowingly no-debt payment,should be added to the article 122.Meanwhile,the article 122 must clearly identify the object of restitution of unjustified enrichment,distinguish the goodwill and malice to confirm the returning scope.This paper designs legal provisions of “composite general term mode” with sound reasons.