| Under the circumstance that the distinction between validity mandatory provisions and management mandatory provisions is not conclusive,the judgment criterion of judicial practice is not able to properly respond to practical problems.In the case of contract disputes involving the sale and purchase of real estate,the increase in the value of the subject matter is often the direct cause of the seller’s claim that the contract is invalid.There are disputes about the way of relief for the victim,such as culpa in contrahendo and unjust enrichment,which should be examined from the aspects of constitutive elements and legal consequences.In the case of culpa in contrahendo,the principle of reasonable trust should be followed to judge whether a party has suffered losses or not.Even if both parties are at fault,there is the possibility of reasonable trust.The principle of protection of reliance interest aims at implementing the spirit of the principle of good faith,denying the right to claim compensation for damage of reliance interest by the fault of the victim,which is contrary to the normative purpose of liability for fault in contracting.The fault of the victim should be regulated by the principle of fault offset at the level of liability.At the level of causation,it is not required that the breach of prior contractual obligations is the only cause of loss,and even if the victim is at fault,it does not affect the determination of causation.From the perspective of the legal consequences of contracting negligence,the victim’s loss should belong to the category of expected benefits.In practice,some cases define the loss of the victim as the loss of opportunity,but there is instability in whether the loss of opportunity can be classified as the benefit of trust or the benefit of expectation,and its significance is also questionable.As for the scope of compensation for damage caused by culpa in contrahendo,it should not be based on the criterion of distinction when the contract is concluded,but on the criterion of the degree of trust.If both parties have reasonable confidence in the smooth performance of the contract,they may conclude the contract even when they know that the contract may have the risk of invalidity.It should also be recognized that the scope of culpa in contrahendo in this case can be extended to the expected interests.In the consideration of the specific scope of liability,the loss of the victim should be determined according to the specific types of disputes.In the consideration of the specific proportion of liability,considering the fault of the breach of trust actor in concluding the contract,and the subsequent breach of the principle of good faith,the breach of trust actor should bear the main responsibility.If the victim also has fault,the rule of fault offset should be used to divide the ultimate liability.In the case of unjust enrichment,there are disputes about the nature of reciprocal return based on Article 58 of the Contract Law,and the recognition of it as the right of claim in rem will not only exclude the scope of application of unjust enrichment,but also have the possibility of producing adverse legal effects to encourage breach of trust.Therefore,the relationship between the right of claim for unjust enrichment and the right of claim for real right should be unified from the perspective of unjust enrichment.In the case of unjust enrichment,there are disputes about the nature of reciprocal return based on Article 58 of the Contract Law,and it is possible to regard it as the right of claim in rem not only excludes the scope of application of unjust enrichment,but also encourages the unfavorable legal effect of breach of trust.Therefore,in dealing with the relationship between the claim of unjust enrichment and the claim of real right,we should regard unjust enrichment as the criterion of whether and how to return.In the process of judging the constitutive elements of improper enrichment,whether the Betrayer gains profits or not should be based on the increase of the total amount of property,including the growth of the value of the subject matter itself.In the consideration of whether the profit of the Betrayer has legal reasons,we should distinguish the benefit from the retained interest.Although there are legal reasons for the Betrayer to obtain the right/property,there is no legal reason for the profit,that is,the legitimacy of the retained interest.From the perspective of the legal effect of unjust enrichment,after satisfying the establishment requirements of unjust enrichment,unjust enrichment debt does not necessarily occur,such as the exclusion principle of unjust enrichment.As an internationally accepted principle of restriction,the principle of exclusion of unjust enrichment has its own defects in the identification of illegal causes and legal effects.Out of the need of the principle of good faith and the principle of value measurement,it should not be applied to the victim’s claim of unjust enrichment.At the current legal level in China,the object of return of unjust enrichment is too strict and the scope of return is too narrow.In order to maximize the spirit of self-government in private law and embody the principle of fairness and justice,there should not be too many restrictions on the return of unjust enrichment.Although the real estate sales contract has the possibility of infringing on the public interest,it does not have the legal effect of the state recovery..In determining the specific scope of responsibility,due to the variability of unjust enrichment itself,we can not apply the principle of fairness and good faith in the constituent elements and consequences of liability at the same time,otherwise,unjust enrichment will have no significance,and there is no difference from the direct application of the principle of fairness in the distribution of the responsibilities of both parties.Compared with the claim of culpa in contrahendo,the claim of unjust enrichment is relatively rigid in the allocation of responsibilities,and once the benefits are determined,it is no longer possible to adjust.In the case of no fault or minor fault of the victim,the return of unjust enrichment is not a problem,but if the victim is intentional or gross negligence,it is not necessarily reasonable for the breach of trust actor to lose the benefit completely,and the unfair situation may still occur. |
