On The Unauthorized Disposal Of Unjustified Enrichment

Unjustified enrichment, as one of the reasons that cause the occurrence of a debt, has a vital position in the system of obligatory right in the civil law, and meanwhile, the system of unjustified enrichment closely correlates with the system of real right, especially the mode of altering real rights in the real right law and the system of bona fide attainment. However, the circle of the civil law in China has not long been deeply investigating the system of unjustified enrichment, and particularly lacks the discussion of the right of claiming bona fide attainment caused by unauthorized disposal which is a legal fact with typical significance, and hence the cognition of this right of claim is a little indistinct. With the release of the Real Right Law in China, some issues of the preconditions related to the system of unjustified enrichment have been solved, and thus the right of claiming unjustified enrichment has a relatively clear logical basis, and the execution of this right of claim becomes feasible.This thesis, combining with the mode of altering real rights, on the basis of illustrating such aspects as unauthorized disposal's definition, elements, legal basis and its relationship with the system of bona fide attainment, discusses the execution of the right of claiming unauthorized disposal of unjustified enrichment in the background of the Real Right Law in China, in order to offer some references for the in-depth research on the system of unjustified enrichment.This thesis is divided into five parts:The first part discusses the definition of unauthorized disposal of unjustified enrichment. Scholars'present definitions of the behavior of unauthorized disposal are too detailed, and do not deeply illustrate its connotation, and thus this thesis on the basis of the alteration of real right, discusses the connotation of the behavior of unauthorized disposal. It is suggested to differentiate the relationship among the right of unauthorized disposal, the power of unauthorized disposal, and the capability of unauthorized disposal when unauthorized disposal is defined, and on this basis clarify that the behavior of unauthorized disposal refers to the behavior of the disposal of the subject matter conducted by the person with the power of unauthorized disposal on his or her own name or others'name. Thus, unauthorized disposal of unjustified enrichment can be defined as: the unjustified enrichment that occurs when the person with the power of unauthorized disposal, on his or her own name or others'name, disposes the right holder's property and hence benefit him or herself or others and lead to the loss of the right holder's property.The second part illustrates the elements of unauthorized disposal of unjustified enrichment. Firstly, the behavior of unauthorized disposal must have been conducted. This behavior of unauthorized disposal is represented as the behavior of making a contract of claim in the mode of intentional doctrine of real right, represented as the behavior of delivering and registering the ownership of the subject matter which is transferred through the real right agreement in the mode of real right formalism, and represented as the behavior of delivering and registering the execution of a contract of claim in the mode of claim formalism. Secondly, the person with the power of unauthorized disposal benefits him or herself or others. The scope of being benefited lies in the property interests; the reason of being benefited is based on others'property; the standard of being benefited lies in the legal attainment. Thirdly, the right holder is injured. This thesis deems that once there is the behavior of unauthorized disposal, it can be affirmed that the right holder is injured. Fourthly, there is a causal relationship between the loss of a right holder and the benefit of the person with the power of unauthorized disposal. That causality should adopt the doctrine of property involvement when the beneficiary is the relative party (the third party) in the trade of unauthorized disposal, and adopt the doctrine of behavior involvement when the beneficiary is the person with the power of unauthorized disposal.The third part concerns the basis of causing unauthorized disposal of unjustified enrichment. The earliest basis of causing unjustified enrichment lies in the concept of equity and justice, according to which whether to lack the legitimacy of owning the benefit is determined. As the independent formation of the system of unjustified enrichment, the basis of unjustified enrichment is switched from equity and justice to the lack of legal reasons. The lack of legal reasons can be divided into the unified doctrine and non-unified doctrine. This thesis deems that the affirmation of the lack of legal reasons of a legal fact or a legal behavior can be divided into such three layers as the judgment of value, the judgment of legal basis, and the judgment of specific behavior. This thesis, through the illustration of these three layers, deems that it conforms to the basic judgment of the"lack of legal reasons"to be benefited with unauthorized disposal.The fourth part involves the relationship between unauthorized disposal of unjustified enrichment and the system of bone fide attainment. It is deemed that unauthorized disposal of unjustified enrichment is obviously different from the system of bone fide attainment in the aspects of design intention, system function and system basis, the design intention of the system of bone fide attainment is to protect the safety of the trade, while that of unjustified enrichment is to protect the interests of ownership; the function of bone fide attainment is to protect the beneficiary's ownership, while that of unjustified enrichment is to get rid of being benefited with the lack of legal reasons; the basis of the system of bone fide attainment lies in the owned public confidence, while that of unjustified enrichment lies in the lack of legal reasons. However, the two are closely correlated. Firstly, under the circumstance of non-gratuitous unauthorized disposal, without the construction of bone fide attainment, it is impossible for the legal fact of unjustified enrichment to occur; with the construction of bone fide attainment, the original right holder shall not ask for the right of claiming unjustified enrichment from the person with the power of unauthorized disposal; when the bone fide attainment is constructed, the content of unjustified enrichment can only be the right of claiming to return the interests instead of the right of claiming to return the ownership of the unjustified enrichment. Secondly, under the circumstance of gratuitous bone fide attainment, the structure of the system of bone fide attainment should be considered, and if, in the aspect of system design, gratuitous unauthorized disposal dose not construct bone fide attainment, there will be no space to apply unjustified enrichment; if, in the aspect of system design bone fide attainment is constructed, the original right holder shall execute the right of claiming unjustified enrichment on the person with the power of unauthorized disposal. When the person with the power of unauthorized disposal cannot afford the return, the bone fide beneficiary is allowed to exercise the right of claiming unjustified enrichment; thirdly, under the circumstance of unauthorized disposal subject to the lack of legal reasons, it should be analyzed according to different modes of altering real right, and in the mode of real right formalism, unauthorized disposal subject to the lack of legal reasons can construct the legal fact of unjustified enrichment, even if the bone fide beneficiary constructs bone fide attainment, and the original right holder can ask the bone fide beneficiary to return unjustified enrichment based on the right of direct claim. In the mode of claim formalism and intentional doctrine, it should be determined according to that the bone fide attainment is the original attainment or derivative attainment. As for the original attainment, under the circumstance that there is only the behavior of unauthorized disposal, the beneficiary constructs bone fide attainment, and the original right of holder can execute the right of claiming unjustified enrichment on the person with the power of unauthorized disposal; while under the circumstance that there is unauthorized disposal and other elements that can affect the validity of the contract of claim, the bone fide attainment cannot be constructed, and thus it is naturally impossible to apply unjustified enrichment. As for the derivative attainment, if there is only unauthorized disposal, the beneficiary may construct bone fide attainment, and the original right of holder may execute the right of claiming unjustified enrichment on the person with the power of unauthorized disposal. If there are other elements that can make the contract of claim invalid besides unauthorized, in the mode of claim formalism the unauthorized disposal of unjustified enrichment subject to the lack of legal reasons can be applied, while the mode of claim intentional doctrine cannot construct bone fide attainment, and it is impossible to apply unjustified enrichment as well.The fifth part discusses the application of unauthorized disposal of unjustified enrichment in the background of the Real Right Law in China. The Real Right Law in China interprets the claim formalism mode of altering real right from a wholly new perspective, adopts the principle of differentiating the reasons of altering real right from the results of that, alters the interpretation on the validity of the contract of claim in Article 55 of the Contract Law, and deems that the contract made by unauthorized disposal is valid. Meanwhile, the Real Right Law regards the system of bone fide attainment as non-gratuitous attainment, and the method of attainment adopts the original attainment, and thus under this circumstance, there is no space to apply the gratuitous unauthorized disposal of unjustified enrichment and the unauthorized disposal of unjustified enrichment subject to the lack of legal reasons, and there is only the application of unjustified enrichment under the circumstance of non- gratuitous unauthorized disposal, and at this moment, the unjustified enrichment and the compensation for the damage and loss caused by the infringement of rights have a both competitive and cooperative relationship, and the original right holder can have the option to apply.