The Research On The Right Of A Malicious Possessor To Claim Reimbursement Of Expenses

As one of the important contents of the possessory system,the system of the claim for the reimbursement of the expenses of the non-possessor is crucial to the settlement of the relationship of rights and obligations between the non-possessor and the oblige.However,article 243 of the property law only provides that the bona fide possessor can request the oblige to reimburse the expenses incurred by the bona fide possessor.Therefore,this paper tries to take the cost reimbursement claim of the malicious possessor as the research object.Property law article 243 the right of recourse to the expense of the malicious possessor did not directly make a regulation,although the property law interpretations of article 112,article 243 and article 9 [2009] no.11 in the cost of the right of recourse being malicious,but the relatively narrow scope,can only solve the problem of cost being malicious under special circumstances.Due to the lack of clear legal norms,the judicial chaos of "different judgments of the same case" frequently occurs in judicial practice,which seriously damages the authority of the judiciary.Aiming at the problem of whether the malicious possessor has the right to claim for reimbursement of expenses,this paper starts from the theory and practice,and at the same time investigates the relevant practices in the comparative law,and discusses the right to claim for reimbursement of expenses of the malicious possessor,in order to better solve the problems in judicial practice.Although the malicious possessor has subjective fault,his expenses should be protected by law.On the one hand,the purpose of admitting that the malicious possessor enjoys the right of reimbursement is to protect the interests of the oblige,that is,"the hand of the malicious possessor protects the interests of the oblige",so that the possessor can still maintain a good state during the period of leaving the oblige.On the other hand,requiring the oblige to repay the expenses incurred by the malicious possessor can avoid the occurrence of unjust enrichment of the oblige,so as to balance the relationship of rights and obligations between the oblige and the possessor.On the basis of proving that the malicious possessor enjoys the right to claim the reimbursement of expenses,the author studies the two legislative modes of no-cause management and unjust enrichment adopted in the comparative law,and finds that the expenses of the malicious possessor do not conform to the constitutive requirements of no-cause management and do not constitute no-cause management.On the contrary,it conforms to the nature and constitution of unjust enrichment,so it can be solved according to the system of unjust enrichment in judicial practice.The rule of unjust enrichment should naturally be applied to the question of the range of expenses which can be claimed by a malicious possessor.However,due to the unjust enrichment system occurred in malicious circumstances,has certain particularity,so for the interest of the oblige shall further restrictions on the scope of the cost,can request to repay the cost of being malicious range should be constrained by value-added benefits and costs double,also should consider the being malicious influence on the scope,of being malicious will reduce or exempt from unjust enrichment rules to determine the amount of compensation.At the same time,in order to avoid the occurrence of forced enrichment,the calculation standard of restitution interest should be subjective,and the restitution interest should be determined according to the economic utilization plan of the possessor.