| Although the civil legal act of illegal cause payment is invalid,but invalidity doesn’t mean that there are no legal consequences.The party might transferred the property based on the original contract,so whether he could ask for the return of the property remained to be discussed.The issue has been fully discussed in comparative law,and there are relatively clear rules to guide it.However,China’s legislation and judicial practice do not adequately regulate the problems caused by illegal causes.The first part of this paper is to analyze the current situation of the judicial judgement for the payment under illegal causes.In the judicial practice,two kinds of judgment orientations have been formed: permitting restitution and prohibiting restitution.Internally,there are two opinions of full return and partial return in the permitted return,while there are three opinions of ruling to reject the suit,collecting and only ruling to reject the claim in the prohibited return.In view of the above differences,it should be established that the legal consequences of payment for illegal reasons are "all and nothing",and it is appropriate to judge full return and only reject the claim.Since the payment for illegal reasons is adjusted by the unjust enrichment system,the beneficiary shall return the benefits obtained to reflect the removal function of the unjust enrichment system.However,a blanket return is unlikely to be effective in curbing illegal activities.The balance between the two kinds of value becomes the cause that leads to the dilemma in the return of unlawful payment.The second part of this paper mainly expounds the traditional scheme of the rule of return for illegal reasons in the comparative law-in principle,the return is prohibited,but the exception allows the return.This is the common standpoint of the two law systems.The legitimacy of the principle of prohibiting restitution lies in maintaining the consistency of the legal system,realizing the punishment of the parties,deterring them,and refusing to protect their rights.Among them,the views of maintaining the consistency of the legal system and deterrence are more reasonable.In addition to the prohibition of restitution rule,the payer can obtain restitution exceptionally if both parties are not equally at fault and the payer withdraws halfway and does not rely on the illegal contract to claim rights.The traditional program has difficulties in application,so it should not be adopted by our country.The third part of this article advocates taking "range of factors" examination path as our judgment foundation stone to distinguish between illegal reasons of payment to be returned or not.This scheme is advocated by the judicial practice in the UK.In fact,it is to provide frame guidance for judges to use their discretion in individual cases.According to the summary of local judicial practice experience,the "range of factors" for reference mainly include the purpose of norms,consistency,the severity of illegal acts,the motivation of the plaintiff to request restitution and the protection of the interests of the third party.Depending on the facts of the case,the elements of selection change accordingly.On the one hand,the ideal rule of payment of illegal causes should strictly recognize the establishment of "illegal".On the other hand,it should play the correction function of the principle of good faith and the principle of public order and good custom,so as to realize the justice of the judgment result. |
