On The Application Of Law To Negotiorum Gestion

Negotiorum gestio,boasting a long history and profound contents,has been a part of law of obligation in Civil Law while it has been a part of law of restitution in Anglo-American Law. Although being one of old and cardinal institutions in private law,it has received litter attention from PIL academy seemingly a uninteresting topic compared with other civil institutions such as real rights,contract,tort,and the works in the realm in which the issues of PIL concerning negotiorum gestio have been studied are not abundant obviously.Besides,owing to the deficiencies referring to application of law of negotiorum gestio in the current PIL statute of China,it is noteworthy of discussing it in the theoretical and practical respect therefore.Apart from the introduction and the conclusion this thesis contains 4 parts totaling 30000 Chinese words.The very beginning of the thesis is the introduction which outlines the significance of the study of the present topic,adumbrates the train of thought of the thesis,and lists the approaches which will be used in the thesis.Part 1 traces briefly the origin and development of Negotiorum gestio from perspective of substantive law,introduces and discriminates the three concepts of "negotiorum gestio", "quasi-contract" and "restitution".Negotiorum gestio,meaning management of another's affairs without having received a mandate or request to do so,of Roman Law origin,had been defined as one of obligations in quasi-contract Hitherto most civil law of continental countries following the Roman Law are no longer employing the concept of quasi-contract regarding negotiorum gestio as a separate legal institution and allocating it to a position of its own in civil law.Being a necessary corrective device in Common Law,the concept of quasi-contract has been preserved,but its definition is different from Civil Law.During recent decades the law of restitution in which the devices of remedies arose from quasi-contract and certain equitable relief are mixed and matched has been shaped gradually.Due to the absence of institution of negotiorum gestio in Anglo-American Law, the instances having some affinity with negotiorum gestio are subsumed the law of restitution.Part 2 explore the conflict of laws between countries of two legal families from the perspective of comparative law.Civil Law and English Law are at odds with negotiorum gestio rooted in different legal idea. The Civil Law deems that the doctrine of negotiorum gestio has an inherently quality that can be ascribed to the role that they are expected to correct unjust sacrifice because of friendly behavior and supplement remedies for persons those acts improve reliance between people and preserve social wealth.Contrary to Civil Law,Anglo-American Law regards that unsolicited conferring benefits on others is a officious intervention which would prejudice the fundamental common law values-autonomy and individualism.As a consequence of the opposed opinions above mentioned the rules governing negotiorum gestio between two legal families are quite different generally. And conflicts also exist between the codified rules of civil law of continental countries.The thesis sets forth the conflict of laws of variety types of negotiorum gestio between the two legal families and articulates the conflict of laws between representative civil codes of continental countries referring to scope,the liabilities and rights of gestor and the effect of recognition of principle.Part 3 is the focus of the thesis by elaborating on the issue of application of law to negotiorum gestio.After commenting on the feasibility and limitations of the specific conflict rules,namely,lex loci actus,lex causa condictionis,personal law and law of the significant relationship,this part discusses the structure of the conflict rules for negotiorum gestio,analyzes the different modes suggested in leading conflicts law texts and designed in representative PEL statutes of the certain countries and in the regulation of Rome II.After surveying the conflict rules of the countries of the two legal families the thesis take the view that the tension between certainty and flexibility can be mitigated and the dilemma brought about due to applying fixed rule can be eschewed if the traditional PIL approaches combined with flexible approaches to produce more sensible conflict rules.Part 4 reflects the ultimate goal of the thesis by exploring the application of law to negotiorum gestio in China.After sketching the history of PIL of China pertaining to negotiorum gestio the thesis holds that the status quo of legislation is unsatisfied and there is an exigency of improving relative conflict rules.Concerning about the modern tendency of current conflict rules-to obtain the balance between legal certainty and predictability on one hand,and the flexibility and equity of result on other hand-and the present situation of the application of law to negotiorum gestio in Chinese PIL the thesis put forwards a proposal on the application of law as a conclusion.