The Unification Of Liability For Restitution Of Property

The Claim of right in rem is obsorbed in the civil liability in the sixth chapter of "the general principles of civil law", and instead of establishing the claim of real right legislation pattern."The Tort Law of the People’s Republic of China" is considered to absorb the successful experience of legislation. But the tort law set restitution of property in liability for tort, while it consider principle of liability for fault as a general theory in sixth article. According to the logic, the restitution of property responsibility on tort law needs to subjective fault. Therefore it made acute clash. I hope that through theoretical study and empirical analysis, only standing on the return of property liability form itself to construct a unified view of the return of property liability theory, while ignoring all the basis of claim right is different.Apart from the introduction and conclusion, the thesis consists of4parts.The first part is about the basic types of restitution liability. Firstly, the thesis began by differentiating the concepts of recover of original property and return of property. About the return of the original, the most typical is the article34th and article245th in Property Law. The return of property including the return of the original, it also includes currency and bearer securities and other economic benefits of return. The restitution liability in this paper is to apply the134th article of the general principles of the civil law and the15th article of the tort law.The second part is about the analysis of the basis of claim right of restitution responsibility. First of all, the three cases of contract were analyzed. Secondly, discussing the reasons that the unjust enrichment claim is need to be an independent claim. Then this paper discusses the two types of unjust enrichment. Again, I analyse the return of property in negotiorum gestio system. The right to request can be incorporated into the Claim of right in rem or the restitution of unjust enrichment claim to analysis. Finally, I briefly discusses the liability of tort claim in tort law, and discusses the necessity of the existence of the return of property liability and its characteristics.The third part is about the compare and analysis of the return responsibility of different basis of claim right. The analysis on principle of imputation and the range of restitution was done by centring the Claim of right in rem, which was compared with the restitution in view of contract and the restitution in view of unjust enrichment and the restitution in view of infringement act. The conclusion is that the restitution in view of right in rem and the restitution in view of contract and the restitution in view of unjust enrichment don’t need subjective fault, instead the restitution in view of infringement act need subjective fault. As for the range of restitution, in principle the original items and fruits shall be return.The fourth part is the unity of restitution of property responsibility. Firstly, to summarize the unity of return of property liability does not require this element of fault. Judicial interpretation should be promulgated so as to illustrate the restitution in view of infringement act don’t need subjective fault. Secondly, construct the return type of the return of the original. Construction of this return type need to make the restitution based on right in rem as the center. This kind of return liability only relates to the original’s return. Again, to construct non return original type’s return of property liability. Construction of this type return of property liability needs to center the return of unjust enrichment. This type return of property liability mainly refers to the return of money and economic interests, accurately speaking, its concrete form should be the compensation in value. Finally, through analyzing a series of case I verifies the theory of return of property liability of unify.