《民法典》编纂视野下我国不当得利法得利与得利返还制度的比较研究

Chinese Law of Unjust Enrichment under Compiling Vision of the Civil Code A Comparative Research between Unjust Enrichment System and Restitution of Unjust Enrichment System

我国法律对于不当得利制度的规定过于简略,难以有效指导司法实践。《欧洲示范民法典草案》对不当得利中得利进行了类型化的界定;并且依据得利是否可转移的性质,确立了不同形式的得利返还规则,应当为我国立法所借鉴。我国不当得利制度在得利的界定上应当在原有抽象概念的基础上作类型化的划分,拓宽不当得利制度调整的范围;在得利标准的认定上应当采纳客观主义标准;在得利返还制度上,应当依照得利性质的不同,确立起原物返还、价额返还以及替代物返还的多种模式;在返还得利的范围上,应当区分得利人得利时的主观心理,分别确定不同的得利返还标准;在价额返还的计算上,应当以不当得利请求权产生时得利的客观价值为计算标准。

Under compiling vision of the Civil Code, this research aims at law of unjust enrichment in China, and specifically compares its systems of unjust enrichment against restitution of unjust enrichment. In China, the stipula- tion of unjust enrichment is too brief to guide judicial practice. According to the Draft Common Frame of Reference, unjust enrichment has been classified. In addition, the Draft Common Frame of Reference has established different types of standards to regulate the restitution of unjust enrichment, based on whether the unjust enrichment can be transferred. The above from the Draft Common Frame of Reference should be used for reference by Chinese legisla- tion. In consequence, I suggest Chinese legal system of unjust enrichment should be improved in the following as- pects. Firstly, it should add classifications of unjust enrichment and expand adjustment range of systems on basis of original abstract conception. Secondly, it should apply objective standard of conduct for affirming standard of gaining benefits. Thirdly, as for system of restitution of unjust enrichment, it should establish different forms of restitution ac- cording to nature of unjust enrichment. The restitution forms can include return of original, return of value and re- turn of substitute. Next, as for the range of restitution, it is suggested to establish different standards based on peo- ple＇s subjective minds when benefiting. Lastly, it should apply objective value when claim on unjust enrichment happens to calculate the amount of restitution.