Research On Restitution Of Benefits Acquired Through Illegal Contracts

As for the restitution of benefits acquired through illegal contracts, there was a principle well settled in Roman law that the wrongdoer cannot recover, and most current legal systems, especially the civil law system and the common law system, also provide that there is no restitution. However, in our country, both the General Principles of the Civil Law and the Contract Law only have allowing-recovery and confiscation rules. On one hand, the existing general allowing-recovery principle cannot play a deterrent effect, and on the other hand, the confiscation-related rules in our legal system are also considered to violate the private character of civil law. Moreover, in our judicial system, such legislative provisions are not completely followed, and the judges’ decisions on some special types of similar cases even may differ widely. To solve the problems above, most scholars in our country focus on the Payment Based On Illegal Reason in the civil law system and suggest that the idea that payment based on illegal reason cannot be recovered should be incorporated in our legislation. On one hand, only exploring the rules in the civil law system may not provide us with comprehensive experience. The other hand, the existing suggestion that the Payment Based On Illegal Reason can be referred does not include its policy rationales and specific application. Therefore, this paper will focus on the common law system and explore the related legislations and judicial interpretations, thus providing more comprehensive guidance to our legislation and judicature.In addition to the introduction, this paper is divided into five parts:The first part focuses on the current situation about the restitution of the benefits acquired through illegal contracts in our county. In the judicial practice, the problem is mainly about the diverse reasons behind judicial decisions and the different results of similar cases. In the academic circles, the scholars’ claims are not consistent, mainly including incorporating the Payment Based On Illegal Reason in the civil law system and referring to the structured discretion in the common law system. involved;(iii) is seeking to withdraw from the transaction before the illegal purpose has been wholly or partly accomplished.The third part explores the tendency in the common law system. In fact, the current nonrecovery-and- exceptions model cannot meet the needs of society. Therefore, a tendency related to the restitution of benefits acquired through illegal transactions is that discretion must be conferred to the court. Therefore, this part will introduce the discretion both in the legislation and in the common law.The fourth part is about the guidance of the discretion in the common law system. In order to avoid the judges’ arbitrariness, there is a list of considerations which are used to structure the discretion, mainly including the seriousness of the illegality, the knowledge and intention of the plaintiff, whether denying relief will act as a deterrent, whether denying relief will further the purpose of the rule which renders the contract illegal, whether denying relief is proportionate to the illegality involved and the consistency in the legal system.The fifth part will give some suggestions to our legislation and judicature. Based on the weaknesses of our legislation and judicature, it is suggested that the Payment Based On Illegal Reason in the civil law system should be incorporated, and the factors, which are considered in the structured discretion in the common law system can be referred to structure the Payment Based On Illegal Reason in our country.