Research On Property Restitution Of Absolutely Invalid Contract

Law provisions of restitution of property of absolutely invalid contract aremainly embodied in the article61of the General Principles of the Civil Law, thearticles58and59of Contract Law. From the articles, we can see that restitution ofproperty problem of invalid contract had been taken uniformed regulations,and didnot distinguished between absolutely invalid contract and relatively invalidcontract.That is to return the property as the principle and to confiscate the propertyas the exception.The way for restitution of property of absolutely invalid contractavoids the phenomenon that“illegal is legal”to some extent,but there are alsoinsufficient.On the one hand,when allow return the property and do not consider theparties’ subjective culpability of the mind,there are some suspicions of conniving theillegal actions,and go against the judiciary fairness and just.On the other hand,theprovision of confiscating in the Civil Law excessively interfered private law and goagainst the nature of private law.Because there are some problems on property ofrestitution of invalid contract in our Civil Law,this paper attempts to use the methodsof empirical and comparative analysis to discuss whether it should return the propertyor not in the case of performing some or all in the absolutely invalid contract,anddiscuss the ownership of the property when did not allow to return the property,andpropose legislative ideas to solve the problem.The first part of this paper pointed out the existing problems,that is property ofrestitution issues about absolutely invalid contract in the legislative and judicialpractice in our country, and analysed its causes. One of the main problems in ourlegislation is that the law did not distinguish between absolutely invalid and relativelyinvalid contract and dealed with them differently,but taken the same way that is toreturn as the principle and to confiscate as the exception; Adopted returning theproperty, there is a suspicion of connivance wrongdoing in the case of absolutelyinvalid contract.In addition, the recovered property norm is contrary to the private lawnature of the civil law. In the judicial practice, on the one hand, property of restitution exits suspicion of connivance wrongdoings;On the other hand, the judgments of theCourt are not in accordance with the laws,and there were some cases of property ofrestitution.The basic reason of the problems in the legislation and judicial practice iswhether absolutely invalid contract should be allowed to return his property or not. Ifthe property should be allowed to return,there is the suspicion of connivancewrongdoing;If not, there is “illegal is legal” phenomenon.It is in trouble.The second part of this article discussed our legal mean of dealing with theproblem, and learned from foreign beneficial legislation way in dealing with theproblem.Given the shortcoming of property of restitution of absolutely invalidcontract in the legislation and judicature, i suggested taking “Noreturning+exception”approach to deal with the problem of property of restitution ofabsolutely invalid contract:Considering the situation of the parties’ fault,we shouldtreat absolutely invalid contract differently in view of violating the mandatoryprovisions of laws and administrative regulations,and violating the public orders andgood morals.(1)violating laws and administrative regulations absolutely invalidcontracts.①Innocent party (Intentionally party) can not request to return theproperty,and ought to confiscate the property.The recovered property clauses wouldbe take leading norms and lay down in the Civil Law.②The non-faultparty(Unwitting party) can request to return the property.(2)violating public ordersand good morals absolutely invalid contract.①Innocent party (informed party) cannot request return the property,occupant get the property.②Non-fault party canrequest tto return the property.The "fault" should be understood the subjective state ofmind that one or both the parties of the contract knows or should know that thecontract which they entered into violated the law or public orders and morals,andhoped to occur the result.In terms of comparative Law,most countries are not set the unified provisionson property of restitution in the institution of legal act,but left to restituton law todeal.The result of this mode is that parties does not be allowed to return the propertyas the legal principle in the event of payment for illegal reasons.By investigatingforeign legislation and judicial practice,the article found that absolutely invalidcontract on property of restitution issue is not allowed to return his property in principle, as the exception shall be returned in typical national of civil law and thecommon law system.The exception that was allowed to return property is that theparties do not have a fault or one party fault is less than the other party, namelynon-equivalent fault.Such as the civil law of Germany, France and China Taiwan.Incommon law,there are principles that do not allow to relief the shameful party,andusually consider the parties’ subjective state as the exception for allowing the partyreturn his property.Such as the United States, the United Kingdom. Legislation of andjudicial practice of China should reference the legislations,the legislature grounds andjudicial practice of these countries.The third part of this article pointed out the value of the approach to ourlegislation and judicial practice,which is that absolutely invalid contract shall not tobe returned as the principle,to be return as the exception.The legislative value is, inthe certain extent, to solve the dilemma,which is whether the absolutely invalidcontract should be returned the property or not, and piont out that refusing returningthe property have more value judgment and higher value pursuit,and the necessitythat we should deal with payment for illegal reasons in the institution of legalconsequences of absolutely invalid legal act.The value of judicial practice is mainlyto avoid abusing the just claim,and to prevent the occurrence of wrongful act to someextent,and is beneficial to judicial fairness and justice.