On The Object And The Range Of Unjust Enrichment For Unauthorized Disposal

The unjust enrichment for unauthorized disposal is that the person who is not the obligee but acts a unauthorized action on the subject matter,and the unauthorized action is valid on the obligee.There are two components: First,the person who is not the obligee shall acts a unauthorized action on the subject matter;second,the unauthorized action shall be effective for the obligee.According to the nature of the act of cause,the unjust enrichment of unauthorized disposal can be divided into three types: consideration,non-consideration and no legal cause.The essence of the unjust enrichment for unauthorized disposal is to exchange benefits with the rights of others.There are three nodes in the choice of the original profitable object: First,when the rights are transferred,the person who act the unauthorized action effectively controls the right to disciplinary which exclusively belong to obligee;Second,after the transfer of rights,it is transformed into the unjust enrichment of debt elimination.Third,after the transfer of rights,the rights are linked to the considerations and the positive interests are increased.The above-mentioned nodes correspond to the theory of disciplinary power,the debt elimination,and the consideration.The doctrine structure of each theory which use the original benefit object as the logical starting point,due to the different nature of the interests of the choice,when determine to the content of restitution,even if faced with the sameproblem,there will be differences.At this time,what kind of structure is more suitable for the Chinese law,it must be verified under the all types of the unjust enrichment for unauthorized disposal.In the consideration type,between the obligee and acquirer,the effectively change of rights caused by the bone fide acquisition is the legal cause,and the unjust enrichment is not born.In this case,only the right holder’s right to claim the“Eingriffskondiktion” to the disciplinary party occurs.The controversy on the issue of restitution focuses on the fact that the obtained consideration is not equal to the objective value of the target.When the obtained consideration is lower than the objective value of the target,if it is the general return liability,according to the theory of consideration,the original benefit object is the actual consideration and usually can return and the loss of benefit can’t occur,so only the lower consideration is required to return.According to the theory of debt elimination or disciplinary power,it can’t be returned and the objective value of the target should be repaid,the problem of loss of benefits is usually not lost.However,in order to carry out the protection in good faith,in the latter two theories,the difference between the actual consideration and the objective value is calculated as the loss of benefits when the person is in good faith.In the case of aggravating responsibilities,according to the theory of debt elimination or disciplinary power,the disciplinary party must return a higher objective value.Under the theory of the consideration,the actual consideration obtained is still returned,and the difference between the actual consideration and the objective value is filled by the damage law.This is determined by the system purpose of unjust enrichment,the theory of right’s affiliation,the theory of compensatory,the principle of equality,and the general concept of society.When the obtained consideration is higher than the objective value of the target,the core idea of each theory is that the relevant type of standard must be used to define the profit generated mainly by the property of the right holder or the special business ability of the disciplinary party.In the case of the former,it must be returned to the right holder;otherwise,it is retained by the disciplinary party.The difference in the theories is occurring when the burden of aggravation arises,when the disciplinary party is malicious,the German major view said that it should be based on Article 819,paragraph 1 and Article 818,paragraph 4of the German Civil Code,and refer to Article 285,requesting the disciplinary party to return all the profits.The minority said that the problem should not be solved within the unjust enrichment system,and exploits the profits by means of illegal negotiorum gestio and infringement.If it cannot be deprived,it means that there is no need to punish.Based on the reasons for distinguishing the legal status of goodwill and malicious disciplinary party,maintaining the consistency of legal value evaluation,and improving the applicability of unjust enrichment in the concurrence of claims,this article uses the major view.In addition,it is necessary to pay attention to the explanation of the direct contradiction in the theory of consideration,in the debt elimination theory and the disciplinary power theory how to calculate the value of object,and in the disciplinary power theory disposition has a divergence that consider the value of disciplinary power itself as the original benefit object.In the non-consideration type,the obtained consideration is zero,and the structure of the unjust enrichment between the obligee and the disciplinary party is the same as the consideration unjust enrichment for unauthorized disposal,when the obtained consideration is lower than the objective value of the target.The core issue is when the obligee has the right to claim for the acquirer.Article 816,paragraph 1 of the German Civil Code is based on the theory of consideration.The benefit is zero when there is non-consideration.The obligee has no right to claim the unjust enrichment to the disciplinary party,and the “durchgriff” is not excessive influencing the payment relationship and defense interests between the parties,so that the free acquirer gives way to who loses rights without compensation,exceptionally allows“durchgriff”.However,according to the theory of debt elimination or disciplinary power,it can be said that even if there is no consideration,the obligee has the right to disciplinary party for claiming the unjust enrichment.If the person is malicious,the situation in which the two unjust enrichment claims with the identity are coexisting,it is necessary to limit one of them.The solution to solve the problem is only when the right holder’s claim for the disciplinary party cannot be realized,the “durchgriff” to the acquirer can be allowed.However,this solution unreasonably expands the scope of the “durchgriff”.Whether it can be applied in China’s law depends on the strictness of the “durchgriff” in the unjust enrichment system of the future Civil Code.In the no legal cause type,the core content is how to properly return the rights to the original right holder.There is a disagreement between the Einheitskondiktionslehre and the Doppelkondiktionstheorie.Today’s general theory is developed from the Doppelkondiktionstheorie,and still treat the right to claim the unjust enrichment as the original benefit object.When the acquirer returns the possession to the disciplinary party,the right is automatically returned to the original right holder.This structure is achieved through the theory of rights belongingness and the purpose-limited reduction of bona fide acquisition.In addition,when the object is lost in the acquirer and the acquirer is in bankruptcy,and the disciplinary party has obtained the consideration,the right holder may only seek relief from the disciplinary party,or the disciplinary party refuses to return the consideration,and the acquirer exercises the defense while not returning possession.The construction of the theory must continue.Due to the structural defects of the theory of debt elimination in the invalidity of the act of cause,the theory of debt elimination are unable to solve the above problems.Finally,through systematically combing and interpreting the main types of doctrinal structures under all types of unjust enrichment for unauthorized disposal,and combining the current situation of legislation,it can be found that the theory of debt elimination has the following problems: 1.There are difficulties in determining and calculating the debts to be eliminated.2.In non-consideration type and consideration type when the obtained consideration are lower than the objective value of the target,the difference is calculated as the loss of benefits.3.On the issue of profit return,it is advocated that when the responsibility is aggravated,it is not within the unjust enrichment system but through other systems to achieve profit deprivation.4.In the case of non-consideration types,when aggravating responsibilities occurs,the solution for the coexistence of multiple unjust enrichment claims expands the scope of “durchgriff”.5.There is no value in dealing with problems in the no legal cause type.6.The theoretical structure is contrary to the general concept of society.The theory of disciplinary power can also have the above second and fourth problem.In addition,the profit-making of the disciplinary party is not the actual appearance of his property,and also has the problem of the theoretical structure deviating from thegeneral concept of society.Therefore,the doctrinal structure which suitable for China is the theory of consideration or the theory of the value of disciplinary power itself.