Questioning The Necessity Of "Negotiorum Gestio"

"Management of another's affair"refers to this kind of behavior: a person manages another's affair for the benefits of the latter without any legal or contractual duty. This kind of behavior exists both in civil law family and Anglo-American common law family. But the two law families select different methods to regulate it and the results are different as well. In civil law countries, it is regulated by the system of negotiorum gestio. By analysis and comparison, this thesis draws the conclusion: the regulation in common law family has the superiority, and countries of civil law family may profit from it. Without the system of negotiorum gestio, benefits brought by manager (gestor) can be dealt with by the law of unjust enrichment, and the loss of principal (dominus) caused by manager can be adjusted by the law of tort. Based on this conclusion, the author tries to put forward several proposals for the future civil code of our country.This thesis contains three parts: Introduction, main text and conclusion.The introduction introduces the topic of the thesis, the significance of the topic, and points out the approaches that will be used in the thesis.The main text are divided into four chapters: chapter one researches on the historical development of negotiorum gestio in civil law family, reveals the origin and value of the system of negotiorum gestio, analyzes its content and explores the necessity and the rationality of its existence. The author points out that altruism as the reason for the existence of the system of negotiorum gestio is inadequate, and there are also many difficulties in this system.Chapter two researches on common law countries'regulation on "management of another's affair", especially America's, by using"the restatement of restitution"(1937) and the precedents. Its methods for regulation are as follows: the law of unjust enrichment deals with benefits brought by manager, and the law of tort adjusts the loss of principal caused by manager.Chapter three compares the methods of the two law families in the regulation of negotiorum gestio, points out the differences, analyzes reasons for differences, and through comparison reveals that the methods of the regulation in common law family are better than those in civil law family, both in formality and in essence.Chapter four puts forward several proposals for the future civil code of our country. It is not better to build up the system of negotiorum gestio. The better choice is as follows: the law of unjust enrichment deals with benefits brought by manager, and the law of tort adjusts the loss of principal caused by manager.The conclusion part sums up the viewpoint and the reasons of this thesis.