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As a means of civil remedy causelessness management -- from the prospective of no for the abolition of the system of management

Author: ZhaoLianHui From: www.yourpaper.net Posted: 2010-06-24 12:18:47 Read:
Keywords: non-management relief Restitution Law to tort litigation
Abstract: Continental quasi causelessness management concept of the purpose of existence is: in order to calculation of the damage compensate for damage compensation law, apply because no management concept, make the perpetrator to spit out the gains, provide relief for victims of a more comprehensive.In the relief of the tort law of our country and the scope of return of unjust enrichment are also affected by the plaintiff status limit damage, although in the legislation of intellectual property rights in the field and the field of some breakthrough, China still retain the quasi without necessity of management system.In order to form a more perfect civil relief system, in addition to compensation for damages and specific performance of the two kinds of relief methods leading to research, and there is a need to reference Restitution Law Theory in Anglo-American law, in-depth study by management without legal and unjustified enrichment law


in our civil legislation and theory, because no management and unjust enrichment is exists as a type of debt, namely the two generation of creditor's rights is a substantive rights, the idea of the importance of substantive rights and civil law is consistent.However, the law proverb said: have the right, was a relief (Ubis jus, IBI remedi-um), the civil rights relief theory system research is very necessary.In contract law and tort law field, scholars have conducted very fruitful research on the theory and practice of compensation for damage, without due to management and unjust enrichment represents the unique relief concept and remedy is for us to ignore.These relief concept should permeate all areas of civil and commercial law, especially in the field of tort law and contract law.Here we discuss from "quasi non reason management" (also known as "not really because no management") concept, through analysis and comparison on the concrete examples, proposed such a view: civil law the quasi non reason management concept is produced in order to make up for the tort law and the contract law to the parties cannot provide adequate relief, in tort law relief theory to obtain the full development, relief the traditional tort law if it can use more flexible word, quasi non because the value management system has no independent existence; and the preliminary demonstration from the law of restitution in the Anglo-American law (Law ofrestitution) theory, the causelessness management system as a civil remedy the necessity of an important link.
a, continental law "because no management" concept of
according to the causelessness management elements, even if in fact to manage the affairs of others, but if the lack of "for the management of affairs of others, meaning" principle cannot constitute a non-management [1]602.Here are two examples:
example 1: a that B is a patent right, not the patent, but still use the patented product, made huge gains.
example 2: a without B license, the ethylene works of fiction film, has paid off handsomely.
in the two case, behavior who know they not an intellectual property right, but the unauthorized use of and access to benefits, which constitutes a typical tort, the right people originally according to tort and unjust enrichment rule request the infringer compensation for their losses, and not applicable because no management rules.However, according to the traditional theory of civil law, the scope of tort compensation is generally by my losses prevail, not in the "manager" to their ability and skill and benefits; if can be used by management without the rule, so the scope of compensation will not be my loss limit, management have the obligation to return all the profits (of course, "the management of people" can also be based on causelessness management rules to retain some interest as "management fees").Therefore, in order to adjust the objective to achieve better, in the judicatory apply because no management rules, can provide better protection for the rights of people.Notable is, this kind of situation not only appear in the field of intellectual property, such as the following examples that appear in the field of traditional debt law.
bicycle example stopped 3:B knowing that their home is A lent his father used to sell, but profit 300 yuan, and the actual value of the bike is only worth 200 yuan [2].
4.B took A a batch of goods, had a market value of $10000, is for their own use or for sale, market prices, the sale income 20000 yuan.
5: E and C is the relationship between father and son.C for doing business friends to borrow 100000 yuan D.C is not due for repayment, D to E required to pay 100000 yuan loan, E mistakenly think that is your past due to D10 million (or mistakenly think that son of debt is their debt), is completely discharged.
in the case of case 3 and case 4, if in accordance with the contract or in our country civil law of unjust enrichment rules, A also can respectively to actual value of bicycle and goods for compensation, and can not obtain the additional benefit of B has been obtained; if permitted by management without the relief, can make B spit out the profits.
civil law civil law of Germany and Taiwan region on causelessness management system with clear regulations ("German Civil Code" 687th second; China Taiwan "Civil Code" article 177th second.)For the day, France and other countries do not adopt [3] (however, Japanese civil law textbooks and books on the theory of multiple alignment without discussion for management system.).Although our civil legislation and judicial practice doesn't establish the system, but at most textbooks and theoretical book causelessness management system also has introduced [1]607.However, scholars generally agree that: "no management" and the real because no management or the essential difference, the so-called quasi non reason management, is only in the composition of law and remedies on causelessness management system use [4] (see [Japan] in the field: "civil law of each of your theory", 516th pages.The scholars of our country also advocate: "in the quasi non reason management, obtained from the management of the interest, also the application of unjust enrichment.If managers obtained from the management principal interests than I suffered damage, will I be permitted no provisions for the management request return of all the interests of managers".See, Zhang Guangxing: "law of obligation", Law Press, 1997 edition, P. ninetieth.).
in theory, quasi non reason management is divided into two types:
first, their management.Know you not that right, but for their own benefit management.As shown in example 1 and example 2, these cases appeared frequently in the field of intellectual property, the nature belongs to tort undoubtedly, therefore is also called "illegal management".[1]607 due to damage to human rights is not easy to determine, based on causelessness management theory, in the explanation should let the infringer to spit out the income obtained from the infringement.As for the cases of 3 and 4 are relevant to the use must not because of management theory, that I have no relevant case.
second, false information management.That they have a transaction management rights or qualifications, thought the management affairs is their own affairs, and in fact in the affairs of others.Because the managers lack for the management of affairs of others, so this does not constitute a non-management."Manager" for management expenses or losses, according to request the return of unjust enrichment.However, in accordance with the relevant laws of our country of the unjust enrichment rules, or not well explained by the infringer can request "infringement" return all the interests of the problem.According to the quasi non reason management theory, in case 1 and case 2, if the perpetrator is mistakenly believed they have corresponding rights and management and use, is mistakenly believed the causelessness management.In 3 cases and so.Also because the traditional theory can not solve the return of unjust enrichment in the range
Problem (discussed below), associate with no provisions for the management, I can for the management of behavior management human acknowledgement or confirmation (the law proverb said: that is equal to the appointed (Ratihabitiomandato comparatur).Zheng Yubo: (a) "saying", Law Press, 2007 edition, ninetieth pages.See also "Taiwan civil law" 178th article.)The behavior of retroactivity, produced by management without the effect.Example 5 is mistakenly believed the typical examples of management, even if C and E are the relationship between father and son, due to E and no C to pay off the debts, the E behavior does not constitute the debt payment by the third party, E can according to the unjust enrichment of requests to D.However, in example 5, because of the money belongs to the typical debt relief, on E using the unjust enrichment has been more fully, not borrow or quasi - with no necessary for management of relief.
two, "quasi non reason management" concept of the necessity of existence of
quasi non due to the essence of management system, with infringement, unjust enrichment and other conditions in the debt of the relationship between the parties, if the infringement, the system of unjust enrichment for the relief provided by the parties still can not fully protect the rights of the interests of the people, even if the "manager", lack of management service to others, can also borrow causelessness management system about the management of property and profits, "manager" request reasonable overheads this unique remedies, so better able to balance between the rights and interests of the parties.That is to say, with or without the premise of quasi borrowing management system are: tort law, contract law and unjust enrichment law system is not for the right person to provide adequate relief.
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