On Payment For Illegal Reasons

Illegal cause performance (ICP for abbreviation) including payment forpreventing criminal, bribe for officials, donation for illegal sexual relationshipand paying of money for gambling and going whoring is one kind of widespreaddaily phenomena. Thus among the laws in the civil law system, ICP is generallynot treated as a special type and these ill-gotten gains (IGG for abbreviation) fromICP are not prescribed to return. However, Chinese civil law as well as Chinesestudies about the civil law seldom include any rules dealing with ICP. Throughthe clear analysis of traditional rules for ICP in the civil law system, thisdissertation tries to discuss the possibility for the build-up of framework fordealing with ICP in Chinese civil law.This dissertation includes four parts.The first part mainly concentrates on the historical backgrounds of ICP.From the Roman law to the contemporary civil law, there are mostly two types oflegislations dealing with the ICP in the civil law system, one representing by thelegislations in France, Germany, Switzerland, Japan and Chinese Taipei,prescribed that these IGG from the ICP would not be returned, except only thereceivers of ICP have illegal cause, the other representing by the legislations insocialist countries as the former U.S.S.R and former Czechic Republic, mostlyadded the demanding of payment from country. In additional, this part alsointroduces illegal contract which are similar with rules dealing with ICP in thecommon law.Part two is the definition of ICP. It provides the definition for "cause","illegal" and "performance" including the analysis of the changing of causetheories from objective perspective to subjective perspective, the analysis of thescope for "illegality", the analysis of the meaning of "performance". Thesummary of this part points out a special type of IGG.The third part focuses on law effects of the ICP. It introduces and discussesseveral theories on the setting of law effect of the ICP, such as the Punishmenttheory, the Refused protection theory and the General preventing theory. This partalso introduces the revisions and exceptions of those theories. Based on those discussions, the probability for rules dealing with ICP can be shown.On the basis of the narration in the former three parts, part four discusses thebuild-up of framework for dealing with ICP in Chinese civil law. It firstly paysattention to the necessary of this build-up. Secondly, through analyzing ofdetailed cases the author points out some contradictions for the Chinesejurisdictional practices in solving the ICP. Thirdly, this part discusses theproblems in the solving of ICP in Chinese civil law system. And finally, theauthor tries to provide solutions for these problems. Compared the Germanmodel with French one, this part discusses the build-up of rules dealing with theIGG and points out that the former would be suitable for Chinese jurisdictionalenvironment. It also analyzes the judging of ICP. Taking the case of bequest inLuzhou China as example, the author discuss the application of rules dealing withICP in China.In the summary, the author detailed analyzes all the items on dealing withICP in the three suggestion-drafts for the legislation of Chinese code of civil lawand tries to convey suggestions for rules dealing with ICP.