论法律行为无效后的财产返还

On Restitution Emerging from Invalidity of Legal Act

法律行为无效后,如果双方已为给付均有返还可能,则相互返还。但在一方所为给付客观上无法返还时,很难采用既符合逻辑推理、又符合公平观念的一般准则予以处理,只能根据行为无效的不同情况,予以区别对待。相对无效行为被撤销后,应充分考虑撤销权人的利益保护,而我国司法实务对某些已经实际履行的绝对无效行为在价格确定上采用"无效行为当有效处理"的原则,有其合理性。此外,应将民事上的财产返还与行政上的处罚分开。赠与行为因违反公序良俗而无效时,应当参照双务合同无效后的处理原则,未履行者不得再请求履行,但已经履行者,赠与人不得请求返还。

After a legal act has been recognized as invalid,both parties should return mutually all those prestations they have received from each other if they can.Nevertheless,if it is objectively can not be returned for one side＇s prestation,to handle logically and fairly in light of general principle becomes unrealistic,the only way to solve must be handling differently according to the varied invalidities.So after a relatively invalid legal act has been revoked,the interests of the party assuming the right of revocation must be given enough consideration,and the principle,＂handling those invalid acts just like they are valid＂,which has been adopted by our judicial practice on cost determination relating to some kinds of executed absolutely invalid acts,is somewhat reasonable.In addition,a clear line should be drawn between civil restitution and administrative penalty.As for invalid donation violating public order and good custom,principles dealing with invalid bilateral contract ought to be referred,that is,those remained not performed yet can not be requested,but the donator who has prestated can not ask for restitution.