| The restitution rules of illegal causeperformance(hereinafter refers to ICP for abbreviation) is theresearch object in this paper.The author tries tocomprehensively and systematically explain the ICP bycomparative,historical,text-based and logicalapproach.Besides the introduction,this paper may divide intofour parts structurally.Part one is the comparative analysis of the restitutionrules of ICP.There are mostly two types of legislations dealingwith the ICP in the civil law system.InFrance,Germany,Switzerland,Japan and Chinese Taipei etc,theperformance of ICP shall not be returned.On the other side,thesocialist countries mostly added the demanding of confiscationby the country.Part two is the analysis of Chinese law.In this paper,theauthor thinks that,we have some legal loopholes about therestitution rules of ICP,we shall not legislate the rulesdirectly.And under the current law,the country-connfiscation has the same meaning with return to the country.Part three is the experience adapted form othercountries.Most of the theories of ICP agreed that theperformance shall not be returned,but the author has adifferent opinion.We shall pay more attention to the justiceof every case,and the law must be more flexible.Part four is the suggestions about the restitution rulesof ICP in China.The author considers that there is no need tolegislate the rules directly.We shall recognize the judge’sdiscretion as one of the most significant tools to solve theproblem.There are several most important factors during thejudging process,such as the seriousness of the illegalaction,the knowledge of plaintiff,the deterrent,theproportionality of interests etc. |
