On The Puzzling Questions Of Negotiorum Gestio

Negotiorum gestio is an important legal system, and its establishment and development adhere to human society's moral and legal value orientation, which has important academic and practical significances. But for a long time, China has not given sufficient weight to its theoretical research and legislative practice. We even can't give clear definitions to some of its basic problems. The current situation directly resulted in the difficulties and confusion chaos of its judicial application. So it is necessary to conduct systematic research on the puzzling questions of negotiorum gestio.Scholars have little different opinions of negotiorum gestio's basic contents:the concept of negotiorum gestio; the legal nature of negotiorum gestio; the system Value of negotiorum gestio; the legal validities of negotiorum gestio. But the manager's capacity for civil acts is a contentious issue. Because negotiorum gestio is a mixed result of the fact that acts, the manager should not be required to have capacity for civil acts, and person without or with limited capacity for civil conduct should not be excluded from the system of negotiorum gestio.The constitutive elements of negotiorum gestio is an important criterion to decide whether an action is negotiorum gestio or not, and it has great significance to distinguish negotiorum gestio from Unjust Enrichment and other torts. So we have to give a clear definition to the constitutive elements of negotiorum gestio. In China scholars have many different opinions in the constitutive elements of negotiorum gestio. The differences mainly lay on whether it contains three constitutive elements or four constitutive elements. But whatever it is, both of them have defects. The constitutive elements of negotiorum gestio should be:The managers providing management without statutory obligations and agreed obligations; The affairs which are managed belonging to others; The managers providing management services with the intention for the interests of others; The management services not countering to the holders'objective interest.According to the constitutive elements of negotiorum gestio and the legal nature of negotiorum gestio, the concept of negotiorum gestio should be:Negotiorum gestio is an factual behavior that the managers provide management services which belong to others with the intention for the interests of others without statutory obligations or agreed obligations, and these management services should not counter to the holders' objective interest.The scholars'traditional classification of negotiorum gestio has many shortcomings. According to the new definition of negotiorum gestio's constitutive elements, the classification of negotiorum gestio should be:First of all, according to the requisite constitutive elements of negotiorum gestio, it should be classified as negotiorum gestio and quasi negotiorum gestio. Quasi negotiorum gestio include illegal management and illusion management. Secondly, negotiorum gestio should be classified as normal negotiorum gestio and urgent negotiorum gestio according to the manger's obligation. Normal negotiorum gestio should be classified as appropriate negotiorum gestio and inappropriate negotiorum gestio according to the extent of benefits or damage that the manager made. When the benefits > damage or the benefits= damage, the management is an appropriate negotiorum gestio; When the benefits < damage, the management is an inappropriate negotiorum gestio. Samely, urgent negotiorum gestio should be classified as appropriate negotiorum gestio and inappropriate negotiorum gestio also, when the manager don't have deliberate and gross negligence, the management is a appropriate negotiorum gestio, vice versa.It is very necessary to conduct research on the compensation of negotiorum gestio's damage. On the question of the manager's compensation to the holder's damage, we must draw a clear distinction between statutory obligation and tort liability. It is a difficult problem on the compensation to the manager's damage in actual practice. To deal with these problems, we must make it clear whether the management is normal negotiorum gestio or urgent negotiorum gestio. The compensation to the urgent manager's damage should band all quarters together, including the trespasser, the beneficiary and the government. Considering China's current practical situation, the managers should be given conditional right of claiming rewards.