Discussion On The Legal System Of Payment Based On Illegal Reasons In South Korea And Its Enlightenment On China

The legal system of payment based on illegal reasons is an important legal system of obligation law of civil law system. The action of payment based on illegal reasons is very common in the daily life, for instance, payment to prevent the repeated crime, bribing the officials with money, bestowal to "a paramour" to maintain illicit sexual liaisons and the monetary payment in prostitution and whoring. The legal system of payment based on illegal reasons is stipulated in Clause746of South Korean Civil Code; however, there is no specific clause on this in China and the relevant issues are addressed through the general rules of civil law and Contract Law. Hence, the domain of payment based on illegal reasons in South Korea is more sophisticated than that in China, and the legal effects are also different from that in China. When similar issues occur in China, they are addressed through general rules of civil law and Contract Law, thus the concept is obscure and indistinct and there exists chaos in juridical practice with the different judgments for the same cases. In the treatment process, even confiscation with the nature of public law emerges. Obviously, it is of great significance to introduce the legal system of payment on illegal reasons into China.Although with explicit stipulations on the issues of payment based on illegal reasons in South Korea and in-depth studies on this issue in the academic circle, it neither means it is very improved in South Korea nor it fits for China’s legal environment. Therefore, it is necessary to discard the dross and select the essence to find out the enlightenment on the establishment of the legal system of payment based on illegal reasons in China. Firstly, just like South Korea, China needs to stipulate the legal system of payment based on illegal reasons by legislation. Express stipulation on this in law can avoid the use of general rules of civil law and Contract Law without express stipulations and further avoid the result of obscure concept and inconvenient application. Secondly, the concept of illegitimacy has the direct bearing on the application of the legal system of payment based on illegal reasons. Therefore, it is necessary to make the concept of illegitimacy clear through the relevant judicial interpretation, namely illegitimacy is the violation of public order and good custom and mandatory statute thus the range of application of payment based on illegal reasons is determined. Thirdly, it is essential to define the concept of reasons. Theory of reasons plays an important role in the judgment of the efficacy of civil action, because it is aimed at the objective goal and motivation of the civil subject in performing civil action. Therefore, to define the concept of reason is conducive to the application of the legal system of payment based on illegal reasons. In addition, it is not stipulated in the general rules of civil law and Contract Law that illegal reasons are one of the conditions of causing invalidation. Therefore, payment based on illegal reasons can be better utilized to better maintain the social public interests by taking illegal reasons as one of the conditions of causing invalidation of civil action. Through understanding the legal system of payment based on illegal reasons, it is stipulated in the regulations in most of the countries that restitution is not permitted (the circumstances stipulated in the proviso excluded). And so it is the treatment effect against this problem in South Korean’s Civil Code. However, it cannot be absolute to deny restitution request after payment based on illegal reasons. Restitution should be based on legislative intent and is permitted when non-restitution shall bring massive loss to the society. At last, as for the issue that restitution can be claimed while only beneficiary is illegal. It is difficult to find the cases of payment based on illegal reasons that only the beneficiary is illegal; after all, both parties are illegal in view of most of payments based on illegal reasons, and the only difference lies in the illegal extent. Therefore, the introduction of the legal system of payment based on illegal reasons in China shall apply to the illegitimacy comparison theory; the illegal extent of the payer and the beneficiary shall be taken into account in the cases of payment based on illegal reasons and restitution request is permitted while the illegal extent of the beneficiary is obviously larger than that of the payer.