| Unjust enrichment system is one of the eternal systems in civil law, whose functions and construction have been endowed with new contents with the development of our society. Unjust enrichment system has been concerned by all theorists in the countries that adopt Continental Law System. However, this system is not taken seriously enough in our country. The main reason is that some experts in theory and judicature mistook the values and functions of this system, and they thought this system is only a supplementary and the dustbin of civil law. But in fact, the theory of unjust enrichment plays a very important role not only in law system but also in the essential problems of civil law such as property possession and property transfer. Moreover, the system itself has an abundant intension and extension. This article gives a brief study on the restitution of unjust enrichment. There are five parts as following:In the first part the author discusses the value of unjust enrichment system and redefines its functions. Unjust enrichment are from justice, and for the justice. Therefore, justice is the point of value. The functions of unjust enrichment system right head to the justice directly. This system can rectify property transfer and protect possession. And the functions of this system are achieved through the specific regulations of restitution of unjust enrichment. Meanwhile, its functions also determine and influence the factors of the construction of this system and its legal effect.In the second part the author talks about how to identify the subject of restitution of unjust enrichment. The identification of the subject is influenced directly by the causality between the beneficiary and the suffer, which are important factors in unjust enrichment. Different identification of the causality will leads to the difference of subject. The author agrees with the conception of "supply", and based on this standard discussing at length the problem of subject identification which is the most complex relationship in the debt of unjust enrichment. The author thinks that the identification of causality here is not only a factual judgment, but also contains a certain value judgment. According to the relativity of debt, to be strict that, the benefit gainer is not the restitution subject of the unjust enrichment, but many countries lay down some rules of exception to balance the interests of each party, providing that under some circumstances, benefit transfer also has the obligation of restitution.In the third part, the author discusses the object of restitution. Theobject of restitution includes the original benefit and derivative benefit. The restitution can be returning of the original articles or the compensation of the articles by value. The former is the main principle, and the latter is exception. Therefore, the condition of restitution by value of the original articles should be controlled strictly. The author thinks that we should follow this clue to clear the "unjust enrichment" provided in our Civil law. It's said that the interests include positive and negative interests, and property interests, not including spirit interests. The method of calculating the restitution by value should be from the time of determination of the obligation of restitution by value according to the view of the author.In the forth part the author talked about the range of restitution. The range is directly related to the good or bad intention of benefit gainer. The definition of the intention is not same in different countries. The author thinks that the standard lies in whether benefit gainer knows the reason in law. In addition, this problem is also concerned with the problem of protecting the interests of incapacity and limited capacity, no matter whether the legal represent ire get involved, it should be judged by legal represent ire.In the last part the author talks about the construction and improvement of the related systems to restitution. On this point, we should at first eliminate some misunderstanding, we should admit the independence of the claim of restitution and deal with the relationship between the claim and other claims with proper way at last, the author give some suggestions. |
