Study On Negotiorum Gestio

Social morals of helping each other and acting bravely for a just cause is one component of the theory of harmonious theory,and it is one of traditional good morals of China and a dogma of Christian. Negotiorum gestio is a legal institution that regulate helping each other and acting bravely for a just cause.According to legislative experience of every country,institutional negotiorum gestio could encourage good social morals of helping each other and acting bravely for a just cause, and this is basic motive for studying this institution.In this article I had studied Roman law,French law,German law,England law,American law through method of comparative law,and interpret the current institution of China based on this study.Negotiorum gestio can be traced to Roman law.Roman law recognized direct action of principal and contrary action of gestor to make the issues of absent person to be managed;there is full record of this in Corpus Juris Civilis of Justinian.Countries of Civil Law codified of institution of negotiorum gestio when they made their civil code.In chapter of quasi-contract of Code Civil the effects of negotiorum gestio is comprehensively regulated,but components of it is not,it is made clear through scholars and courts.In BGB the components and effects of negotiorum gestio are comprehensively and systematically regulated,the institution of negotiorum gestio is made more precise through scholars and courts.The civil code of Republic of China is made mainly by referring of BGB,and the theory also mainly borrowed from that of German.The Common Law is hostile to comprehensive institution of negotiorum gestio,but it had changed its standpoint to some extent through law of restitution(unjustified enrichment) and law of torts.There is only one clause of legislation and one interpretation of the Supreme Court on negotiorum gestio in PRC,the rule is extremely simple, and the word and phrase of the rule is apparently different of that of BGB, but the theory of ours still follows that of BGB because of traditional influence.I think that we should be conscious of characteristic of the words and phrase of our rule when we interpret our rules,and we can apply the rule of entrustment by analogy to make clear of rights and duties between of gestor and principal.Acting bravely for a just cause is one example of negotiorum gestio in Civil Law,but it is separately regulated in Generalities of civil law.The special rule of liability of proper compensation of the benefiter to heroes should take precedence that of negotiorum gestio,but other legal relationship between them should still apply the rule ofnegotiorum gestio.