The Normative Development Of Unlawful Enrichment In The Civil Code

In terms of history,the system of unlawful enrichment can be traced back to the Roman law era,while in terms of geography,it spans across continental law and Anglo-American law systems,becoming one of the major issues in the field of law.Today,China’s Civil Code has been promulgated,but the legislative institution still suspends the legal rules of unlawful enrichment.The lack of normative supply in judicial precedents of China has led to confusion in judicial decisions.The cross-application of criminal and civil law has also led to the academic imbalance.Restricting the claim for return from the perspective of unlawful enrichment is an urgent issue that should be solved in the study of civil law.Based on the specific provisions of the Civil Code and a comparative study of international law,the key path to solving disputes over unlawful enrichment is to find judicial norms.Regardless of academic development outside of China or domestic judicial decisions,interpreters and judges have abandoned the old theories of punishment and refusal to protect and turned to the reasoning path of general prevention.Under the guidance of the general prevention concept,the judgment of "unlawfulness" in unlawful enrichment is concentrated on the requirement of the unity of legal order,with strong illegality as one of the elements.Following the theory of special reasons,in special cases involving unlawful enrichment,the subjective malice of the party under unlawful conditions should also be taken into account by judges.As for the act of payment,which is a factual element,since the reason has been separated from the payment act,the court does not need to explore the purpose of the payment by the parties and make a judgment on whether to return or not based on the occurrence of the payment and receipt in reality.Returning to the interpretation of the Civil Code from academic research,in the case of legislative gaps,the work of legal interpretation should actually shift to filling the gaps.The guidance of the normative rules for unlawful enrichment should start from Article 985 of the Civil Code.Through the expansion of the purpose of Article 985,the basic position of the payer not being able to request a return still stands.In the specific application process,the judgment of unlawful enrichment requires judges to use a dynamic system approach,taking into account factors such as illegality,the subjective knowledge of the parties,the balance of the interests of third parties,and making a fully reasoned and justified decision that conforms to current norms and social fairness and justice.Only in this way can the system of unlawful enrichment gradually develop within the dimension of the Civil Code.