Research Of The Nature Of The Right To Claim For Currency Return In Error Payments

The wrong payment situation occurs in practice.After the payment is incorrectly paid to the payee,it usually involves the payment of the claimant's currency return request.This paper combines the status quo of judicial practice and the relevant theory of money return claims,and strives to find some key issues in the application of judicial recourse in judicial practice and put forward their own opinions on solving the problem.This article is divided into five parts:The first part is the analysis of case data and the presentation of the problem.The author adopts the general-part structure.The specific scope of the investigation is: the investigation of the diversity of subjects involved in the wrong payment of the claim of restitution case;and the conclusion of the case of this type of case,the purpose of which is mainly to grasp the The general trend of the application of money return in the actual remittance case.The portion specifically includes two aspects: one is the right of claim for currency return and the interests of the third party subject,mainly to examine the legal relationship between the payer and the payee after the wrong payment occurs,the second is the application situation of the currency "possession is ownership" rule in judicial practice,mainly to examine the reasons for the court's ruling when the money return request right is exercised in the form of obligatory claim.Through the analysis of the case,the author finds that the key to determining whether the wrong payer can fight the payee and the general creditor,and thus the successful return of the error money is the nature of the right of claimant's currency claim of restitution.There are two disputes between the right of the obligatory claim and the right of real claim.It is essential to clarify the nature of the right to claim for currency return in error payments for the legitimate interests of the payer.The second part is a comparative study on the nature of the right to claim for currency return in error payments.Firstly,it examines the understanding of the right to claim for currency return in Germany and Japan in the civil law system.Secondly,it analyzes the right to claim for currency return in the Anglo-American legal system.At the same time,it self-examination on the basic understanding of the issue in theory boundary and practice in China.The third part studies the institutional structure of the right of the obligatory claim in the wrong payment.Through analysis,the author believes that the right of claim for currency return in the judicial circle is the conclusion of the right of the obligatory claim,and its basis of the system construction is the “possession is ownership” rule of cash currency.Under the rule,the ownership of the deposit currency transfers when occurs at the time of the payee,and under the mixed nature of the money,the payer's claim for return is only a claim of a obligatory nature and does not have the effect against the general creditor.Through a detailed analysis of the connotation of the rule,the author concludes that the deposit currency should not adopt the “possession is ownership” rule of cash currency.Otherwise,it is not only difficult to be self-consistent in logic,nor can it achieve fairness and justice in the field of civil law.The fourth part is based on the third part,through the refutation of the right of the obligatory claim derived from the “possession is ownership” rule of money,trying to demonstrate the space and possibility for the establishment of the right of real claim on the currency.The author argues from the perspectives of “the value of claim of restitution” and“the real right of obligatory right”.When paying wrong cash,you can learn from the theory of“the value of claim of restitution” proposed by German scholars;It can be demonstrated by the theory of "the real right of obligatory right ".The fifth part studies the specific application of the right of real claim in the wrong payment case.There are four specific situations: in the first case,the currency does not confuse and there is no circulation.At this time,the payer can claim the right of real claim and can resist the general creditor;in the second case,the currency does not confuse and if it is circulated,if it is consumable circulation,it cannot claim the right of real claim,and it is advisable to use the right of the obligatory claim;if it is non-expendable,it can claim the right of real claim on substitute.In the third case,the currency is mixed and not circulated.For the general account,the right of real claim can be claimed.If the account is attached or frozen by the court,the payer can resist the general creditor in execution;in the fourth case,the currency is mixed and circulated,and the right of real claim is exercised according to the specific circumstances of the payee using the mixed currency.