| Negotiorum gestio which originated in Roman law, has played an important role in promoting the morality of helping others, balancing the interests between managers and beneficiaries and elevating the overall economic value. As China is now vigorously building harmonious society, the spirit of mutual help among people proves to be an important symbol of harmonious society. If we want to promote the culture of helping others, it is necessary to improve the existing negotiorum gestio system so that it can play a full role of balancing the interests between managers and beneficiaries. However,negotiorum gestio system in China is not as perfect as in civil law countries, especially in the aspect of the legal validities of negotiorum gestio, which is lack of sufficient research on. There are several issues lack of clear understanding, such as whether negotiorum gestio is legitimate or not, what rights and obiligations exist between managers and beneficiaries, what responsibility a manager should bear if he does not perform his obligations, whether negotiorum gestio and infringement unjust enrichment will occur simultaneously or not, what are the differences between negotiorum gestio and unjust enrichment, unauthorized agency, unauthorized disposition. In view of these, this paper attempts to discuss the legal validities of negotiorum gestion completely. The text is divided into three parts:To research into why negotiorum gestio negates illegality, I analyze the basic theory of negotiorum gestio in the first part, including the definition, historical development, value, constituent elements and type of negotiorum gestio. Negotiorum gestio is defined as the management of the affairs of others without legal or contractual obligation in order to avoid losses of the interests of others. The definition implicates the elements of negotiorum gestio:no legal or contractual obligation, to manage other people's affairs, with administrative means. Because of these three constituent elements, negotiorum gestio breaks the principle of "prohibition of interfering with other people's affairs" and becomes legal. As to the types of negotiorum gestio, first of all, negotiorum gestio in this paper refers to the real negotiorum gestio, which meets the above constituent elements. According to whether the management helps beneficiaries and whether the management is against the meaning of beneficiaries, real negotiorum gestio can be divided into appropriate negotiorum gestio (including subjective appropriate negotiorum gestio and objective appropriate negotiorum gestio) and inappropriate negotiorum gestio, these two types of negotiorum gestio will produce different legal validities. Secondly, unreal negotiorum gestio(management for oneself) does not belong to negotiorum gestio and only applies the rules of negotiorum gestio in special situation.The second part is the main part of this article. In this part I considerately analyze the legal validities of different kinds of negotiorum gestio and discuss the relation between negotiorum gestio and related systems.Firstly, appropriate negotiorum gestio is legal and negates illegality. On the one hand, managers have three obligations-obligation of proper management, obligation of notification, obligations of reporting and accounting. On the other hand, managers have three rights:claim on necessary or useful fees, claim on necessary or useful debt and claim on damage compensations. Beneficiaries's benefit is not the precondition for managers enjoying corresponding rights.As long as managers act in accordance with the constituent elements of appropriate negotiorum gestio, managers are entitled to require beneficiaries to fulfill the obligations. In addition, this paper argues that managers should take the duty of a good administrator, that is, mangers should be responsible for intentional or negligent behavior. In urgent management, managers are responsible only in respect of intention and gross negligence. If the behavior of managers infringes on the rights of others intentionally or negligently, managers should be assumed to take the responsibility of infringement, because the negation of illegality only exists when negotiorum gestio is established. After establishment of negotiorum gestio, if managers infringe on the rights of others intentionally or negligently, and the trespass has nothing to do with negotiorum gestio or only indirectly related, it should be assumed as infringement. Secondly, talking about the legal validities of inappropriate negotiorum gestio, this paper argues that, due to improper interference in other people's affairs, inappropriate negotiorum gestio is illegal, the provisions of tort or unjust enrichment should be applied. However, if the benefits of management excess to the losses of beneficiaries, managers only compensate or return within the losses of beneficiaries when beneficiaries require by tort or unjust enrichment, then managers will benefit from improper interference, which violates the principle of fairness and impartiality. Therefore, beneficiaries should be allowed to apply appropriate negotiorum gestio to require all of the benefits. As a result, the legal validities of inappropriate negotiorum gestio are different because of different choices of beneficiaries:if beneficiaries claim on the benefits of negotiorum gestio, the rule of appropriate negotiorum gestio should be applied, but managers may demand in the limitation of benefits of beneficiaries; otherwise, the provisions of unjust enrichment or tort will be applied.Thirdly, unreal negotiorum gestio does not really belong to the category of negotiorum gestio, but should be applied the provisions of unjust enrichment or tort. Only in the lawless administration, beneficiaries are permitted to apply negotiorum gestio in order to prevent intentionally violating the rights of others.Fourthly, as negotiorum gestio, unjust enrichment, unauthorized agency and unauthorized disposition are similar in some extent and they are hard to be distinguished in practice, this paper focuses on the differences and relations between the above mentioned systems. The functions, nature, constituent elements and the legal validities of negotiorum gestio and unjust enrichment are different. Appropriate negotiorum gestio and unjust enrichment does not occur meanwhile, but inappropriate negotiorum gestio is possible to occur at the same time with unjust enrichment. Negotiorum gestio and unauthorized agency are different in the nature, the parties, the main regulatory contents and the "meaning". This paper distinguishes negotiorum gestio and unauthorized disposition from the aspects of the nature, the parties, the "meaning," and the legal validities. Through analysis of these similar issues, it is helpful to further realize the legal validities of negotiorum gestio.The final chapter argues, compared with the relatively detailed legislation of Negotiorum gestio in foreign countries, the relevant legislation of China is relatively simple and defective.In China,we have not established a complete system in negotiorum gestio.For example, the legislation has not prescribed the obiligations of manages, nor has it established the liability system of managers.Moreover,it has not provided comprehensive provisions of the rights of managers, nor has it distinguished the different legal validities between reasonable and unreasonable interference with the affairs of others, etc. On the basis of the above analysis, the last chapter proposes suggestions for the legislation of negotiorum gestio in our country.,... |
