On The Return Rules Of Payment For Unlawful Reasons

No matter in the civil law system or in the common law system,the return rule of payment for unlawful reasons has positive significance to prevent payment for unlawful reasons.But in our country’s civil legislation,this rule has always been missing,“Civil Code” has not changed.Scholars have disputes on the constituent elements of the rule and its system orientation.In judicial practice,civil cases involving “payment for illegal reasons” emerge in endlessly,and the single rule for liquidation of invalid contract can not meet the needs of practice.In view of this,the text is divided into three chapters to study the construction of the return rule of payment for unlawful reasons.Chapter 1 studies the conflict caused by the absence of the return rule of payment for unlawful reasons.Article 157 of the Civil Code uniformly applies the rule of “mutual return” to the return of invalid civil juristic acts,regardless of the seriousness of the wrongful act and whether the return will violate the legal norms.There are loopholes in the law.The absence of the return rule of payment for illegal reasons leads to the conflicts of value and rules among the rules of civil law,civil law and other departmental laws.Chapter 2 reviews the current legislative and judicial status on the return rules of payment for unlawful reasons in comparative law.Most civil law countries put the return rule of payment for unlawful reasons under the system of unjust enrichment as a defense to a claim for unjust enrichment.Principally,no restitution is allowed,except in exceptional circumstances provided for in legislation or jurisprudence.Although the “principle+exception” model alleviates the rigor of general rules,there are some difficulties in application.Common law system countries do not have the return rules of payment for unlawful reasons,through “the illegal contract prohibition restitution rule” processing the restitution of contracts invalidated by violation of law,and it underwent a transition from a strict principle of wrongfulness to a “range of factors”.However,the new option is subject to uncertainty of application and may lead to arbitrary judicial decisions.Chapter 3 examines the establishment of the return rules of payment for unlawful reasons.First of all,in view of the limitations of the “principle+exceptions” model and“range of factors” approach,it is advocated that the strictly constituent elements of the non-return rules of payment for unlawful reasons should be used to determine whether to return.The constituent elements of the rule,including that the payment is illegal or unconventional and the normative purpose violated has not been achieved,the payer knows or should know the payment act is illegal,and the payment act has been completed.Secondly,it rejects the view that the rule should be placed under the system of unjust enrichment,and justifies the rule as an exception to Article 157 of the Civil Code.Finally,to safeguard the effectiveness of the non-return rules of payment for unlawful reasons,it is clear that the rule can also be applied to claims for the return of property rights and tort damages.