Researches On Natural Obligation

Natural obligation is originated from Roman law. In Roman law, it is contrary to legal obligation. There was not the concept of natural obligation in the early Roman law. Natural obligation system existed in the late Roman Republic when the thought of Greek natural law came into Rome, especially when Greek Stoic philosophy was accepted. In Roman law, natural obligation is divided into pure and impure natural obligation. Pure natural obligation has more legal effect than impure one. The debtor of pure natural obligation promises performing or establishing pawn or pledge, which have legal effect. Impure one is essentially a moral obligation.Natural obligation is an obligation defined between legal obligation and non-legal obligation. It doesn't contain all the legal effect of legal obligation because it doesn't contain all the essentials of legal obligation. The creditor of natural obligation can't ask the court to take legal proceedings because natural obligation lack mandatory implementation force, its request force is incomplete, and its disciplinary right is also incomplete. However natural obligation has certain legal effect. For example, if the debtor performs the duty voluntarily, the creditor has right to remain the recompense, and the debtor can't ask for returning it because it is not unjustified benefits. Natural obligation system is different from illegal recompense system because the obligation concerned about illegal recompense system is invalid while natural obligation has certain legal effect.There is a great deal of natural obligation in Roman law because of its strict formalism. Natural obligation decreased with the establishment of the meaning governed principles in the 16th century. In modern civil legislation there are regulations concerned about natural obligation in most countries. As far as natural obligation is concerned, there are French legislative model and German legislative model in the civil law. The unenforceable contract system in the common law has much in common with the natural obligation system. The civil law of French legal system defines the natural obligation definitely. While within German legal model, the usual effect of natural obligation is not defined clearly. However, its types, such as the obligation after the limitation period is defined in detail. Both the two legal models have advantages and disadvantages.However, in our country there is not universal legal provision in civil law except some concrete regulations, According to the civil situation in our country, this essay designs the concrete legal system of natural obligation..The major method which the writer used in his thesis can be found as a typology and a comparative method. The writer also limited his discussion in the continental legal system, among which the French civil law, the German civil law, the Japanese civil law and the Chinese Taiwan civil aw are considered representative.This thesis has been divided into five parts.Chapter 1 concerns some general arguments to the natural obligation, which includes as following, the nature obligation of the Roman law,the definition of the natural obligation, arguments on the practical benefits of the natural obligation, the writer's opinion.In Section 1,the writer tried to introduce the natural obligation of the Roman law, which fond in Sénèque code of law that was made in the dynasty of Nèron, and which divided into pure and impure natural obligation. Nowadays, scholars bring up different definitions of the natural obligation leading the next section. According different sounds of scholars, we could know clear points of view. In section 3, the writer's point is that natural obligation is the same as incomplete debt and different from nullified debt.Chapter two involves natural obligation is not all of incomplete debt.In section 1, comparing natural obligation and incomplete debt, we find they have different categories. There are five kinds of incomplete debt used inspection from section 2 to section 6.Almost all scholars consider the obligations as a typical natural obligation when the action is barred by praescriptio estintiva, so do the writer on the same topic. When it comes to this case that is a obligation still surviving even that the creditor does lose his case, the obligation kind of natural obligation, because the verdict of the courts couldn't deny an obligation, but give the debtor an Einreden. Still someone thought that praestare ob iniustam causam and condictio ob iniustam causam,and gambling debt are kinds of natural obligations. The writer stick to believe there was no any kind of obligations under such circumstances, not mention to the natural obligation, which is a kind of legal obligation. But different scholars have given their different explanations on the question. The different doctrines have been discussed.Chapter three involves natural obligation is not nullified debt.The cases analyzed are based on the ground that they are imperfectly valid in law when they came into being. Nullified debt can not form debt, even natural obligation. if the debtor performs the duty voluntarily, the creditor has right to remain the recompense, and the debtor can't ask for returning it because it is not unjustified benefits.Chapter four involves different natural obligation systems of the countries.Admitting natural obligation systems such as France and denying it such as Germany have their advantages. The mode of France is brief and to the point, but the judge is liable to abuse of discretion. The anther mode has easier operation.In the last chapter, the writer makes clear the attitude of natural obligation. Basing on the character of the law, natural obligation system has lost the meaning of inheritable need. So the writer proposes that put natural obligation system into another related articles, and throw away the general idea of natural obligation.