Performance Based On Illegal Cause

Nowadays, legal acts with the purpose of violating the mandatory or public orderand social customs should be void, which has been approved by legislature andjudicial practices in civil law and common law. But invalidation, for the sake of statepolicies and public interest, is an intervention of public authorities in privateautonomy，which means we must take measures to strictly limit the scope of illegalinvalidity and carefully set up the processing rules of illegal invalidity. The traditionalcivil law via the performance based on illegal cause rules to regulate the legal effectof illegal invalidity, and these ill-gotten gains are not prescribed to return. Theperformance based on illegal cause dates from Roman law, and then, by thedevelopment of France Civil law and German Civil law and the gradual improvementof modern civil legislation and the gradual modification of many scholars, the rule ismore and more perfect. The common law also exist illegal contracts which have thesimilar function with performance based on illegal cause. In juridical practice, thecourts always refuse to provide the party with legal protection, according to the word“He who comes into a court of quality must come with clean hands”.In recent years, performance based on illegal cause is one kind of widespreaddaily phenomena in China, including bride for official, donation for illegal sexualrelationship. At the same time, there is not a clear definition about performance basedon illegal cause in current civil legislation.As the result of absence of the system, thecourts are prone to apply regulations of invalidation to the cases that are subject to theperformance based on illegal cause. Especially owing to the history element, the civillaw, by the influences of Soviet Union, overemphasizes the intervention of publicauthorities. According to Chinese law, the property acquired should be returned or beturned over to the State as the result of invalidation. The unreason and fuzziness ofrules lead to ‘the same cause, the different consequence’in judicial practice.The paper bases on the current situation of china’s law, by way of analyzing thedisadvantages of invalidation and discussing the definition,the purpose and the processing rule of the performance based on illegal cause, and then search the mostappropriate way of solving the problems in china.Exclusive of foreword and epilogue, the paper consists of four parts,.The first part mainly talks about current situation of illegal cause performance inChinese civil law. It firstly introduces the current legislation, which is the phenomenaof performance based on illegal cause depend on the rule of invalid civil acts and voidcontracts. Secondly, through analyzing of three similar cases which were different injudgments, the author argues some contradictions in Chinese jurisdictional practice.The second part mainly concentrates on discussing the disadvantages ofinvalidation, to point out the necessary of building up performance based on illegalcause in china. In china, the system of causes about invalidation is confused, whichbring about unreasonable results. On the legal consequences, both restoration andconfiscation have shortcomings.The third part is an introduction about the definition and law effects ofperformance based on illegal cause. Firstly, it interprets the meaning of“performance” and “illegal reason”, which are the constitutive requirements ofperformance based on illegal cause. Secondly, it discusses several theories on “noappeal for refund,” including the purpose, the objection, the revisions and theexception. Based on these discussions, the probability for rules dealing withperformance based on illegal cause can be shown.The final part is the foothold. On the basis of the narration in the former threeparts, this part is mainly about the construction of the system in china. Due to theabstract of the concept and the mechanization of legal effects, the author gives someadvices of legislation and application. In particular, the legislation ought to introduceand shrink the concept of performance based on illegal cause. Secondly, our countryshould build up the “no appeal for refund” principle and the “appeal for refund”exception. Thirdly, we should give the judges proper discretion. At the last, the authortries to advance the items about performance based on illegal cause in china.In conclusion, the improvement of performance based on illegal cause in china,must base on the condition of our country, society and national, must profit from thelegal theory and legislative experience of the traditional civil law. Only in this way, we can realize the positive function of performance based on illegal cause in chinaand the coordination of justice and public order.