我国民法典不当得利“得利”性质之解释

The Explanation on the Appropriateness of“Obtaining Benefits”in Unjustified Enrichment in China’s Civil Code

正确理解不当得利之“得利”性质合法与否,得利人所得是否为非法利益,是准确适用《民法典》不当得利的基本前提。受苏联民法理论的影响,我国很长时间将不当得利视为不法得利。《民法典》确立了不当得利的“得利”之合法性质,纠正了之前将不当得利视为违法得利的错误。传统大陆法系国家的不当得利制度,目的在于弥补物权变动规则导致的当事人之间权利义务失衡,为利益受损的当事人提供债上救济,不当得利和非法得利不具有关联性。不当得利不是为了弥补受损方损失,其返还范围以得利人取得的利益为限,不当得利返还与侵权赔偿、违约责任的补偿性机能不兼容。得利人取得利益的手段和方法虽无不法,却没有继续保持所得利益的法律基础和道德之正当性,故而应将所获利益返还给受损一方。基于不当得利的合法性质,不当得利与侵权得利、违约得利不存在请求权竞合,也无权益侵害型不当得利。在得利人恶意之情形,允许不当得利请求权和侵权请求权聚合。

A correct understanding of whether the nature of unjust enrichment is legal or not,and whether the gains of unjust enrichment are illegal whether unjust enrichment is illegal interest is the basic prerequisite for the accurate application of unjust enrichment in Civil Code.Influenced by the civil law theory of Soviet Russia,China has regarded unjust enrichment as unlawful enrichment for a long time.China’s Civil Code has established the legal nature of“gain”of unjust gain,and corrected the mistake of treating unjust gain as illegal gain.The unjust enrichment system in traditional civil law countries aims to make up for the imbalance of rights and obligations between the parties caused by the rules of property right change and provide debt relief for the parties whose interests have been damaged.Unjust enrichment is not related to illegal enrichment.Unjust gain is not to make up for the losses of the injured party,and its return scope is limited to the benefits obtained by the gainer.Unjust gain return is incompatible with the compensatory functions of tort compensation and liability for breach of contract.Although the means and methods of obtaining improper benefits are not illegal,the gainer does not continue to maintain the legal basis and moral legitimacy of such benefits,so the gainer should return the benefits obtained to the injured party.On the basis of the legitimacy of unjust enrichment,there is no competing claim among unjust enrichment,tort enrichment and breach of contract enrichment,and there is no so-called unjust enrichment of infringement of rights and interests.In the case of malice of the gainer,the right to claim unjust enrichment and the right to claim infringement are allowed to be aggregated.