Study On The Defects And Improvement Of Negotiorum Gestio

To understand negotiorum gestio, we should comprehend the behaviour and thesystem of the negotiorum gestio at first. The definition of negotiorum gestio behaviourexist in the continental law system, while it is more correct in our civil law. It saysnegotiorum gestio is the behaviour to manage others things for evading their losswithout legal or appointed duties. The institution of negotiorum gestio is the law orrules define the right and obligation between manager and beneficiary. There is athought group beyond peopele group, where the people follow the “commom will”,Durkheim said. I think the “commom will” contain “minimun moral bottom line”, andit is the line that cause peole to help others of their own accord. That is the behaviourof negotiorum gestio. The institution of negotiorum gestio started in Jus romanum,come from the system of picking up lost property，and there are two basis. One forlooking after the property when the patriarch is out, and another for encouraging thesecurity of social benefit. Facing different manager, to coordinate benefits, theinstitution of the negotiorum gestio is based on the suppose of “rational man”.Negotiorum Gestio system as one of the oldest legal system, From Roman law tomodern civil law has undergone thousands of years of history,ideas and legislation forthe protection of the principles which are turned.Modern negotiorum gestio system incontinental law system on the management system of Roman law has some change andinnovation.Rejection of the "compact" concept of negotiorum gestio in Roman law.Simply protected interest of "who is not", gradually changing to not "meet other’smean" and "objectively conducive to him" as a unique of negotiorum pointer.Undercertain circumstances allow managers "by the nature of things and the way help others" for the behavior. Managers rights get recognition and attention, but also burden theadditional obligations,for protect the objective rationality of management behavior andreduce the damage done to protect the objective rationality of management behaviorand reduce the damage done to other’s interests.Germany negotiorum gestio systemcreates "admitted right"，to protect other’s interests more flexible, more greater.Modern negotiorum gestio should be established around the carrying forwardthe social ethics of mutual and dual balance adjustment in the interests of society. Thatis also consistent with the need for harmonious social development. Negotiorum gestio system in today’s society there are at least three aspects of theethical, legal, economic,positive role and value. But not enough importance attachedto negotiorum gestio system in china. Also lack of development negotiorum gestiosystems is exist. Survey of the reasons for two:one is under the influence of socialtradition and habit formation of living environment, about"help for Mercy " is goodand difficult to generally accepted,occurs dispute is difficult to access to the courts, fora long time not conducive to the judicial practice and legislative guidance.The secondis due to the development of China’s market economy, to a certain extent affect thelegal concerns of the Centre of gravity. As a moral behavior, negotiorum gestio did notreceive due attention. Compared with other countries, legislation must also existcertain lag on the development of the echnology. Adhering to modern managementsystem-free not free to interference in the affairs of others, protect the rights of othersto enhance and safeguard the social interests of the legal requirements,at the same timeconsider the particular situation of china, take certain good Samaritan into negotiorumgestio.Extended to a certain extent without negotiorum gestio extension, will be readyunder certain circumstances, such as to prevent violations into negotiorum gestiocategories. Perfecting the civil law on the prevention of violations and negotiorumgestio, in order to coordination of cases of negotiorum gestio in the judicial process.Onsetting Specific principles of negotiorum gestio system, first of all, should protect therights of managers,as the same time an emphasis on rationality of managementbehavior and active protection for management actions.Secondly, taking into accountboth the interests should protection concerns rights by managers. Through guidedmanagement trends to scientific and rationalizatic, limiting mke use of the name ofnegotiorum gestio to damage other interests.