Research On Legal Relationship Of Wrong Remittance Acquired By Others

The legal relationship of wrong remittance is usually defined as unjust enrichment,the wrong remitter may request the recipient to return the unjust enrichment.But when the recipient uses the wrong remittance to pay off debts so without funds to perform the debt of unjust enrichment or the recipient is in bankruptcy,the right of the wrong remitter cannot be realized.Take the wrong remittance acquired by others as an example,China currently has no legal provisions,and the views of cases of court are really different,divided into two factions support repayment effective and objectionable repayment effective,but in both of them there are several different legal reasons.At the same time,in the cases,there are some questions: the mixed application of the request right of unjust enrichment and original return,the character of legal relationship of bank deposit,the character of legal relationship of remittance,the relationship between wrong remittance and misrepresentation,and the theory of "possession of money is all".On the legal relationship of bank deposit,ownership of deposits as the standard,it can be divided into two categories: the ownership of depositors and bank ownership,and both of them have a corresponding legal basis,and both of them internal exists the different qualitative theories for the deposit relationship.On the legal relationship of remittance,there are two theories: the transfer of creditor's right and the relationship of triangular instruction payment.But the transfer of creditor's right is contrary to the facts: somebody can remittance without a bank account,the legal nature of the different bank's withdrawal and the payment mode of credit card.So no matter whether the remittance transfer is in the same bank o between different banks or through third-party payment agencies,they are all the use of triangular instruction payment.On the legal effect of the wrong remittance,theoretically,it is mainly from the misrepresentation as the breakthrough point,exists three theories: misrepresentation,relationship of reason is necessary and relationship of reason is not necessary.The legal conclusion of them is different,but all three do not pay attention to the theory of finality of payment in the practice of bank remittance,including the finality of the remittance transfer of the remitter and the finality of accept the remittance of the recipient.Therefore,when analyzing the legal relationship of wrong remittance,we must always insist on determining the parties with the payment relationship,determining the ownership of the wrong remittance by way of the change of the real right,the finality of accept the remittance of the recipient and the application of the principle of equity.On the theory of "possession of money is all",it is to protect the currency circulation and transaction security,but is in conflict with rules of lost property,embezzlement,malicious third party is not protected by law,and is not expressly provided in these methods of real right acquisition by non-juristic act.Monetary possession should be applied to mixed species rules,and then applied to personal property in bona fide acquisition.Whether the wrong remittance is acquired by others or not,the key is to determine whether the transaction is in accordance with the personal property in bona fide acquisition.