Return The Unjust Enrichment Of Judicial Application Problems For Research

Claim for restitution of unjust enrichment is the core of the unjust enrichment, which historical origin is the unjust enrichment of the Roman law. With2000years development, it has become a separate civil law system, and has been accepted and gradually paid more and more attention by Civil law and Anglo-American law generally. The prerequisite of the claim is the ownership of the subject matter that has transferred to the opposite person. If the opposite person who owns the subject matter is lack of legality or legitimacy, malicious or benign to a certain degree, it is related with right of things and liability for tort when the right is exercised, and the effect of law is different with the choice of the claim. In the judicial practice, the unjust enrichment claim can seldom be returned to the practical applications directly and flexibly. Because as a legal system, the development of the unjust enrichment in our country is slow and delayed. In the view of legislation, the rule of unjust enrichment in our country is simple and lack of maneuverability. The92th rule of the Civil Law stipulates,"if someone obtains an unfair advantage with a lawful basis and makes others a loss, the person should return the interests to the one who lost". In a number of issues (Trial) on the implementation of the General Principles of Civil Law of the Republic of China instituted by the Supreme People’s Court, the article131stipulates,"the illegal profit returned should include the original thing and the obligation arising from unjust enrichment. The other benefits obtained from unjust enrichment after deducting administrative costs of labor should be confiscated too." Just to these two rules, it is far away from the wish to cover as an independent system in its entirety in the truth. I would analyse from the constituents of the elements of unjust enrichment, the returning range, burden of proof, as well as the choice of concurrent claims, researching combined with issues arising from the judicial application in our country.