Management System Study

The establishment and development of the system of negotiorum gestio adhere to human society's moral and legal value orientation,which has a long history.In any form of a social,the people always need to help each other that had been to be a form of development of human society.In real life,people can't always effective in the control and management of their own property and Personal safety,which requires someone to take the initiative to provide help to shake off the dilemma.Looking at the most countries and regions in the word,the theoretical research and the legislative practice of the negotiorum gestio are becoming more and more perfect,but none in China for a long time to be heard.The paper will make a more comprehensive and complete study on the system of negotiorum gestio by comparison method and the history of the method.In addition to the introduction,the paper including six parts:The first part is about outline on the system of negotiorum gestio. This part including three aspects contents:The sort of negotiorum gestio;the concepts and legal nature of negotiorum gestio;the basic classification of the negotiorum gestio.Based on the study of above-mentioned issues,the paper believes that:The thinking of the negotiorum gestio stems from the specific provision of "Lost Property Keepers" which in ancient law,but as a modern civil law system originated in Roman law.The civil laws of the modern countries constructed the normal negotiorum gestio on the basic of abstraction specific and individual action negotiorum gestorum in Roman law.On the basis of the general system,negotiorum gestio developed to be many various types of classifications.The process of development of the system of negotiorum gestio through concrete to abstract from the abstract to the concrete.Negotiorum gestio is a mixed result of the fact that acts.The types of negotiorum gestio can be divided into:real negotiorum gestio and unreal negotiorum gestio;appropriate negotiorum gestio and Inappropriate negotiorum gestio;normal negotiorum gestio and special negotiorum gestio.The second part is about the theoretical foundation of negotiorum gestio. In this part,mainly study three theories about negotiorum gestio and put forward my own views.Allowing others administrator intervention services such acts legitimacy is the law make a value judgment between personal freedom and the interests of the community,on the basis of the idea of social associations,and mutual support.The reasons why give the managers the right to claim compensation,not just let them accessed praise and appreciation, are that Managers need incentives and Legal pursue fairness and justice.In a society of strangers,it's far from enough to encourage people to manage affairs of others without any interests,only rely on moral.It is also necessary to provide another incentive mechanism.This incentive mechanism will make the manager's costs and losses which incurred by managing affairs of others, can be compensated.At this time,the manager will not suffer losses,but also can be good reputation,will be happy to help others."Enjoy interests,let others bear the loss,is not fair" When the administrator based on moral advocacy for the interests of others,they often spend some of the necessary costs,and even suffer economic losses.It is in violation of fairness and justice, if a person who get interests,but not to respond to restitution or compensation. Constrained managers by setting statutory obligations for them,rather than moral,for two reasons.First of all,morality is not mandatory.Managers whether or not to comply with moral depend entirely on their own moral conscience,which is uncertain.It is not fair to protect the interests of managers totally dependent on the factors of uncertainty.Secondly,we are facing the main of market economy,which is the relative weakening of moral values,very skillful,and seek to maximize their own interests.It is different from mandat imparfait,the system of negotiorum gestio should Pursuit fairness.Under the system of negotiorum gestio,managers and administrators should be given equal protection.On the one hand,in order to encourage managers and prevent him from unfair sacrifices,to give managers the right to claim the compensation.On the other hand,in order to compensate the freedom of holders,to limit the scope of managers' rights.The mangers should conduct others affairs as well as a kind-hearted people do.The third part is about establishment of negotiorum gestio.First of all,there are three main elements of the composition of negotiorum gestio. The first element is that the affairs which are managed should belong to others.The second element is the managers provide management services with the intention for the interests of others.The third element is the mangers provide management without statutory obligations and agreed obligations.For the first element,the paper will make detail analysis on three issues which are what affairs can be managed by the managers,what are the affairs of others and the content of management services.For the second element,the paper carried out in-depth analysis on the three theories of how to judge whether the managers provide management services for the interests of others,and ultimately proved to the theory of distinguish affairs as objective others affairs and subjective others affairs is reasonable.For the third element,the paper talked about what are the legal obligation and the scope of the obligation. Secondly,in order to further clear the elements of the composition of negotiorum gestio,the paper made a research on the issues such as the conditions required for parties,whether the managers must know the manager, whether the managers can consider their own interests,whether the managers must have the intention to have holders obligation of compensation.Finally, analysis whether due to negotiorum gestio or not under some common stations.The fourth part is about the legal effects of negotiorum gestio.In the part of this paper will discuss two aspects of the legal effects of negotiorum gestio. The legal effects of negotiorum gestio have two aspects,which are avoiding illegal and due to debt relationship between the parts.First of all,on the issue of illegal negates.Negotiorum gestio is a kind of appropriate behavior.It is impossible that changing for the entire qualitative of the behavior,because of a breach of statutory obligations of the administrator.Once the negotiorum gestio to be tenable,it will due to statutory relationship of rights and obligations between the two parties.In addition to unreal negotiorum gestio, all the behaviors which accord to the requests of the real negotiorum gestio ruled out the tort liability.Therefore,if the managers in the management process against the rights of others,deliberately or by mistake,then he should bear the responsibility of the debt,rather than assume responsibility for infringement,because at this time his behavior was not violations,but should be considered a breach of statutory obligations.Secondly,with regard to the relations debts of negotiorum gestio,the paper will make a detailed exposition, on the side of rights and obligations of the administrator.The obligations of administrators include:proper management,notification,to continue to manage,reports and calculations.The rights of administrators include:the right to request reimbursement,debt repayment and the right to request the right to request damages.Under the no-whether it is appropriate for management services,the right to be different from the administrator.If the managers begin to provide management services appropriately,or the inappropriate behaviors of the managers were be recognized by the holders of affairs,then managers have three claims.If the inappropriate behaviors of the managers were not be recognized by the holder of affairs,then the managers do not enjoy claims.The managers should bear the obligation as a person with kindness and highly capacity.In generally,the managers should responsible for light fault.However,in emergency management,the manager only responsible for the deliberate and gross negligence,not when managers consider carefully because it was an urgent case,if the request for accountability standards too high,then the time will be bungled,and I will be unnecessary losses.The fifth part is about comparison for negotiorum gestio.At first,I made a summary and conclusion on the characteristics of negotiorum gestio of the common law and civil law.Although there are many differences between the common law and civil law in form and scope of negotiorum gestio,but the spirit of them is interlinked.China should choose civil law practice to found the system of negotiorum gestio and establish a unified system like Switzerland and Japan.The sixth part is about the improvement of China's negotiorum gestio system.The art involves three main issues:first,the analysis of structure of China's negotiorum gestio system,and this analysis come from two sides which are the evolution of China's negotiorum gestio system in the draft Civil Code and the current situation of China's negotiorum gestio system.Secondly, the shortcomings of the current negotiorum gestio system,that is,there are only two simple requirements,and not constituting a complete system because the legislators not paid much attention to the negotiorum gestio system. Finally,the proposals of China's against lacking of it,using the legislative experience of other countries as a source of reference.