Study On Restitution Of Enrichment Gained From Wrongful Infringement

Enrichment gained from wrongful infringement,leading to the restitution of enrichment as a legal response to protect the order of lawful interest,is a legal fact abstracted from natural facts.This dissertation is a study upon the restitution of enrichment gained from wrongful infringement and the system of cause of actions through which the restitution is accessible.Although different jurisdictions have chosen different law to response to the event of enriching by wrongful infringement,the response of restoring the enrichment made by infringers to the infringed is a common sense shared by common law jurisdiction and civilian jurisdiction.Germany,representing the civil law,developed the system of unjust enrichment by recognisingEingriffskondiktion(wrong-based enrichment);on the other hand,England and United States have got their own way out by identifying the remedy of restitution for wrongs.In Chinese positive law,the system of remedies in tort law is unpacked from the centre of compensatory damages,not including the remedy of restitution.The rules of unjust enrichment,in comparison with contract law and tort law,remains in a weaker position far away from the centre of our obligation law.Consequently,the selection of causes of action as the basis for restitution-claim in Chinese law should be made only subsequent to a throughout study upon relative legislations in advanced jurisdictions and a re-analysis of our positive law.Chapter Ⅰ aims to clarify the theoretical basis for the restitution of enrichment gained from wrongful infringement,in order to pave the way for the subsequent discussion.Section Ⅰdescribes enrichment gained from wrongful infringement as a legal fact by locating it in the basic structure of right-duty and remedyliability of private law: it triggers the liability of restoring enrichment to the infringed party and meets the requirements of certain specific cause of action as a basis for restitution-claim.As to the conceptions,section II compares the conception of enrichment gained from wrongful infringement with torts and unjust enrichment in the law of obligation,in order to clarify the coordinate in the current-existing legal conception-system.Then,some necessary explorations in jurisprudence and philosophy justifying the restitution of enrichment from wrongful infringement should be handled.Chapter Ⅱ is the substantive part of this dissertation,including reflections upon our legislation and litigation practices,suggestions proposed by academia of China,and introduction of advanced legislation mode of typical jurisdictions.Section Ⅰ summarises the part of Chinese positive law and legal practices which is mainly concerned with the restitution of enrichment from wrongful infringement,including articles and cases in the areas of torts,unjust enrichment,intellectual property law,corporation law etc.Section II is reflecting upon the articles and practices of tort law,the flaws of which is analysed and accordingly,legislation examples of common law is introduced.With the same structure of previous section,section III mainly aims at the law of unjust enrichment,consisting of reflections upon articles of positive law and practices,suggestions of Chinese academia,and introduction of legislation examples of civil law.On the basis of previous chapters,Chapter III tries to construct the framework of restitution of enrichment gained from wrongful infringement,containing requirements,examples and legislation suggestions.To establish the enrichment from wrongful interference,four requirements should be satisfied,namely,infringement of lawful interests,enrichment of infringer,causation,fault or absence of legal basis.The fourth requirement could split enriching by wrongful interference into two categories,one is the concurrence of torts and unjust enrichment,the other is pure unjust enrichment.For the concurrence of torts and unjust enrichment,it is advised that the system of liabilities in Chinese tort law should be more diverse,which means restitution or restitutionary damages should be added into;while for the pure unjust enrichment,it is advised that more concrete and specific rules related to unjust enrichment should be formulated in our civil law,especially the rules of wrong-based unjustenrichment.The conclusion summarises the opinions in this dissertation.