[author]Wang Zejian

[content]

The construction of the hermeneutics of unjust enrichment

*Author: Wang Zejian

Abstract：The law of unjust enrichment, originated in Roman law and synthesized in German civil law, is designed to regulate property transfers in private law without a legal ground and involves the entire private legal relationships. The law of unjust enrichment in Taiwan region was inherited from German law, and the construction of its legal dogmatics also relies mainly on the reception of legal theories. In the construction of the legal system of unjust enrichment, the typological distinction is very crucial. Currently, the prevailing view in Taiwan region adopts the typology theory, which distinguishes two major types of unjust enrichment, namely, unjust enrichment based on performance and unjust enrichment not based on performance. The former, closely related to the autonomy of private law, is intended to regulate the property transfers in failed transactions and to adjust the theory of non-causality of ownership transfers. The latter, especially the unjust enrichment based on infringement, aims to strengthen the legal protection of rights and interests, and has a broader field of application. It is also an important issue for the development of unjust enrichment law in Mainland China that to construct and refine the theoretical system of unjust enrichment law through the reception of legal theories, the accumulation of local jurisprudence and the development of academic studies.

Keyword：Unjust Enrichment, Typology, Reception of Law, Reception of Theory, Legal Dogmatics

1. Introduction

1.1 Why did you choose unjust enrichment?

The law of unjust enrichment is designed to regulate changes in property that have no legal cause in private law and involves the entire private law relationship. Unjust enrichment law is an important and difficult branch of law. Even now in Germany, unjust enrichment in public law is a subject of study.

The legal provisions for unjust enrichment are highly abstract. For example, Article 179 of the Civil Code of Taiwan, China, stipulates: "A person who receives benefits without legal reasons and causes damage to others shall return the benefits he has received." Although this article is only less than 30 words, it is very significant. Relying on this article, we need to build a huge system, which requires a lot of legal thinking or joint research results.

Since there is only one article on unjust enrichment (Chinese mainland's General Principles of Civil Law also has only one provision, although several articles have now been added to the Civil Code, it mainly relies on Article 985 of the Civil Code), to build a large system, it is necessary to gather years of jurisprudence and doctrinal research. So far, the mainland has not issued a relevant judicial interpretation, and it is unlikely that there will be a judicial interpretation, because it is not covered by judicial interpretations. Even if a judicial interpretation is promulgated, it is difficult or impossible to apply it without the cooperation of the entire case law practice.

1.2 The construction of legal interpretation

Rechtsdogmatik refers to meaningful jurisprudence, the main content of which includes the description of the law in force, the study of the legal concept system of the law in force, and the suggestion of difficult problems (normative practice). Legal hermeneutics has the following functions. First, systematic function. Systematically organize and analyze the conceptual system of the current law, understand the value system within the law, and grasp the relationship between specific norms as a whole, so as to facilitate the teaching, learning and dissemination of legal knowledge. Second, the stabilization function. To provide applicable legal opinions for judicial practice and specific judgments, with a view to influencing the same type of judgment for a long time, forming general practice principles, so as to strengthen the predictability and legal stability of court judgments. Third, it reduces the burden of argumentation. Providing testable and persuasive solutions to specific legal issues reduces the burden of legal research and court reasoning, and people do not have to re-discuss everything. This also makes it necessary to put forward better reasons and bear the burden of argumentation in order to change the legal opinion that has reached a consensus in hermeneutics. Fourth, fix and update the function. The principles of legal interpretation and legal continuation put forward by the theory of legal interpretation have the role of regulating the development of various systems, and should not be confined to existing opinions. In order to adapt to social changes, it is necessary to create conditions for profound criticism to discover contradictions, resolve conflicts, and explore new and reasonable solutions that conform to the system, so as to achieve innovation and progress.

The purpose of this paper is to construct a legal interpretation of unjust enrichment, hoping to help understand the basic issues of the system structure, interpretation and application of unjust enrichment law, and the development direction, so as to have a deeper understanding of civil law and strengthen more refined legal thinking and argumentation ability.

2. The historical basis and development of the law of unjust enrichment

The law of unjust enrichment has evolved over the past 2,000 years. Unjust enrichment was already in Roman law, and a term in German law (condictio) comes from Roman law.

2.1 Roman law

Roman law recognized an individualized right of action for unjust enrichment (condictio) based on the cause of unjust enrichment, as in the case of condictio ob rem. The concept of "harming others and benefiting oneself and violating equitable fairness and justice" put forward by the great Roman jurist Pompnius has nourished the change and development of unjust enrichment for two thousand years, and through Germany, it has influenced the formation and development of unjust enrichment law in Chinese mainland.

2.2 Germany law

After more than 2,000 years of development, the law of unjust enrichment was finally established in Germany civil law. Germany's civil law (1900) succeeded Roman law and formulated the most systematic unjust enrichment law in comparative law (articles 812-822), which is the largest systematic composition of unjust enrichment law in history, and its rich jurisprudence has been widely adopted by Japan, Chinese mainland and Taiwan, and has also influenced the development of unjust enrichment law in United Kingdom and other European countries.

2.3 Comparison of legislative precedents

Section 812 of the Germany Civil Code stipulates: "A person who obtains a benefit from a person who has suffered damage (Auf Kosten) as a result of a payment or other means without legal reasons shall be liable to return to that other person." If the legal reason does not exist later, or according to the content of the legal act, the desired result of the payment does not occur, there is still an obligation to return it. ”

Article 179 of the Civil Code of Taiwan, China, stipulates: "Anyone who receives benefits without legal reasons and causes damage to others shall return his benefits." The same applies to those who have legal reasons and have ceased to exist since. It can be seen that the "Civil Code" of Taiwan only inherits the first two paragraphs of Article 812 of the German Civil Code, excluding the latter part of "the desired purpose is not achieved" and "the result does not occur". Recently, many court decisions have debated this question: what exactly does it mean to "pay for the purpose of not achieving what you want"? I think that as far as the current development is concerned, the mainland research may not have fully realized or discussed the issue of what is the relationship between the so-called "failure to achieve the purpose" and contracts or other agreements. In the legislative process of Taiwan's "civil law", many provisions have been simplified when inheriting Germany law, and the drafters may feel that it does not need to be so complicated, or think that it is meaningless. Therefore, many problems in Taiwan's "civil law" are actually because the German civil law has provisions, but the "civil law" does not stipulate them, and in the end, the reverse must be discussed. But the drafters of the "Civil Code" did not write it casually, they must have referred to the German Civil Code, but very carefully.

Article 985 of the Civil Code of Chinese mainland stipulates: "If the gainer obtains an improper benefit without legal basis, the person who suffers the loss may request the gainer to return the benefit obtained, except in any of the following circumstances: (1) payment for the performance of a moral obligation; (2) the repayment of debts before they become due; (3) Repayment of debts knowing that there is no obligation to pay. "Personally, I have made a great contribution to the unjust enrichment law in the mainland. In 1989 (or 1986) I attended a seminar on the General Principles of Chinese Civil Law at the Chinese University of Chinese University, and it was a very meaningful gathering. The General Principles of the Civil Law do not stipulate that there is no "legal basis" when providing for unjust enrichment, but rather "legal basis". At the time, I said that it would be better not to use the term "legal grounds" but to replace it with "legal reasons". Unjust enrichment has nothing to do with being legal or unlawful, and if the essence of unjust enrichment is misunderstood, it will be difficult to apply. It is better to change the provisions of the Civil Code to "no legal basis", but it is too narrow, because the occurrence of payment includes contracts in addition to legal provisions. The absence of a "legal basis" may be construed as having no legal basis, but the contract can also be the reason for payment. This may also be due to the cautious nature of legislators. Each article of the Civil Code, like the "Civil Code" of Taiwan, has its comparative legal origin. When we study the provisions of the civil law, it is advisable to attach the provisions of the comparative law for comparison. For example, article 1165 of the Civil Code stipulates that if an actor infringes on the civil rights and interests of others and causes damage due to his fault, he shall bear tort liability. This sentence was debated for a long time when the Civil Code was formulated. This provision is derived from Article 709 of the Civil Code of Japan, Article 184 of the Civil Code of Taiwan, and Article 823 of the Civil Code of Germany. Why is the use of "rights and interests" infringed? It's a big decision. Article 823 of the German Civil Code uses the word "right", Article 1382 of the France Civil Code uses the phrase "cause damage to others", and Article 709 of the Japan Civil Code uses the term "right or legally protected interest". In short, the study of comparative law enables us to know ourselves by knowing others.

2.4 Legislative succession and doctrine succession

The development of the law of unjust enrichment involves a very important concept in the development of law, that is, legislative succession and doctrinal succession. Eighty percent of the provisions of the Civil Code in mainland China have their origins; There are also self-created, but it is inevitable that some historical experience is missing. Germany's 100-year-old civil law has gone through many trials. The self-created provisions may lack in-depth research, and at the same time, many unforeseeable doubts may arise, so there is no major reason why it is not appropriate to change the successor provisions, which is why many countries tend to legislate succession. After the succession of legislation, what is more important is the succession of doctrine. Doctrinal succession is important because it contributes to the stable application of the provisions that follow the succession of legislation. In the study of legal issues, it is necessary to pay attention to comparative law, review the source of legislative succession, and attach importance to the function of doctrine succession.

3. The system of unjust enrichment: the construction of typology

3.1 The controversy between the unification theory and the non-unity theory

Next, we will discuss one of the basic issues in the composition of the unjust enrichment system, that is, the controversy between the homogeneity theory and the non-unity theory in terms of type. This debate has been going on for hundreds of years, and it is only recently that it has slowly moved towards the adoption of non-unification theory. The doctrine of unification asserts that a common principle can be put forward to deal with all unjust enrichment. The non-uniform doctrine advocates that its elements should be determined for the various types of unjust enrichment.

One of the peculiarities of the law of unjust enrichment is that there are few relevant provisions, which need to be fleshed out through precedents and doctrines. Whenever such a situation is encountered, there must be a doctrinal controversy, and the few provisions lead to endless debates, forming different opinions, and then forming a general theory. Therefore, to study the law of unjust enrichment, it is necessary not only to study the provisions of unjust enrichment, but also to learn the formation of doctrines, the formation of general theories, and the comparison of various theories of A and B. In the process of learning unjust enrichment, we learn not only the rules themselves, but also the methods of learning the law. In Germany, a test of a person's understanding of civil law is a test of his understanding of unjust enrichment, because it runs through the entire civil law. The Germany jurisprudence state examination involves unjust enrichment, which shows the importance of testing whether the candidate has mastered it.

3.2 The 2012 Tai Shang Zi No. 1722 judgment of the "Supreme Court of the Taiwan Region".

I have mentioned on a number of occasions that the development of law and legal hermeneutics does not begin with texts, but with cases. Cases are the life and development of the law. When we study and teach, we often use a case as a starting point. There are many cases that have been circulating for 100 years, and the cases show the life and development of the law. For example, there is a case of United Kingdom law (Donoghue v. Stevenson [1932] AC 562), in Scotland, a woman who went to drink beer with a non-transparent bottle found a rotting snail in the bottle when she finished drinking it, and the woman later became ill, so she sued the beer manufacturer for tort liability. In United Kingdom more than 90 years ago, there was a principle that "tort liability cannot be claimed if there is a contract", that is, the so-called "privity of contract" takes precedence. In this case, the beer was purchased and gifted to her by a friend of the lady, and she could not sue through the contract. The development of the law depends on whether the judge or lawyer can find that the case in question is of legal principle. Therefore, the development of the law is often related to whether the jurist and judge can find out whether the case under discussion involves a major legal principle. On the other hand, if you do not expound the major principles and principles in a major case, and say that they are not important, you will not be able to help the development of the law. In this case, can damages be claimed from the brewer? In United Kingdom at the time, according to the "privity of contract", it was not possible. As a result, Lord Atkin, one of the greatest jurists, judges, gave impetus to the development of the law. I saw a biography in which his daughter said that morning she asked her father, "Why are you walking around the living room in such a hurry that you are different today?" Her father told her: "This morning I will give a speech in Parliament that will change United Kingdom law." (This morning I‘m going to the house to make a speech which will change the law of England.) In his judgment, Lord Etkin put forward the famous "neighbor principle" in United Kingdom.

The next case in Taiwan is very important.

Basic facts: A and B conspired to buy and sell house A and to transfer its possession and ownership. B borrowed money from C and mortgaged House A without authorization. Let's ask: 1. What is the legal relationship between the parties? 2. Can A request B for the return of the loan under the unjust enrichment provisions?

The "Supreme Court" of Taiwan has used this case to construct a system of unjust enrichment. It sought to find a basis for the claim that could support A's claim, and for this purpose it adopted and adopted a number of precedents and doctrines, including those of Germany and Japan. The Court's view is as follows:

Unjust enrichment can be divided into "payment-based unjust enrichment" and "non-payment-type unjust enrichment" according to its type, the former is unjust enrichment based on the purposeful and conscious payment of the injured party, and the latter is unjust enrichment established by acts other than payment (the act of the injured person, beneficiary, or third party) or the law. In addition, in the "unjust enrichment of non-payment type", "unjust enrichment of rights and interests" is not justified, if the benefit is received due to the infringement of the content of the rights and interests of others, and the damage is caused to others, it can be regarded as causing damage to others based on the same cause and facts, and it lacks legitimacy; That is to say, if the interests that should be attributed to the rights and interests of others are obtained by the infringing act, without the legitimacy of retaining the interests, it shall constitute unjust enrichment without legal reasons. In this case, the original trial court held that the sale and purchase contract and the transfer of property rights of the real estate at issue between the two parties were invalid due to collusion and false expressions of intent, so Zhang did not seem to have consciously and purposefully enriched Zhang's property.

Zhang Mouying used the real estate at issue as security to create a mortgage, infringing on the rights and interests attributable to Zhang Mouqiang, and Zhang Mouying received the interest in the loan as a result, which seems to be recognized as causing Zhang Mouqiang to be damaged by the mortgage right attached to the real estate at issue based on the same reason, and because the loan interest received by Zhang Mouying should actually belong to Zhang Mouqiang, the owner of the real estate, it lacks legitimacy, constitutes no legal reason, and is a non-payment type of unjust enrichment. The original trial court did not make a detailed investigation in this regard, and it was not for no legal reason that Zhang Mouying's acquisition of the loan was based on the legal relationship between Zhang Mouying and the bank for consumer lending, and it was not for legal reasons, but in order to be unfavorable to Zhang Mouqiang's judgment, he was quick to make a decision. The original trial court also found that Zhang Mouying had obtained the benefit guaranteed by a third party (i.e., Zhang Mouqiang), and it was restated that Zhang Mouying had no profit at all, and the reasons before and after were contradictory.

This passage integrates decades of doctrinal arguments in Taiwan, and is actually a common opinion in Germany textbooks. With this ruling, Taiwan's judges established a system of unjust enrichment to handle the case. Most law students and judges in Taiwan will now say that this case is not "payment-type unjust enrichment", but "non-payment-type unjust enrichment", and "unjust enrichment of rights and interests infringement", and use this new type of unjust enrichment as the basis for the plaintiff's claim. Its constituent elements include: the benefit is based on the attribution of rights, and the damage caused to others is based on the attribution of rights, based on the fact of the same cause rather than on the basis of causal relationship. One of the biggest questions is what benefits? The most important thing in legal research is definition, and nothing is more important than this, and studying law is learning the definition of legal concepts. So what are the benefits? In order to solve this case, the court's judgment inherited the foreign theory, established a system, and found a basis for claims. Although this judgment constructs unjust enrichment for infringement of rights and interests, there is still a debate on the issue of "receiving benefits". Should the benefit refer to the creation of a mortgage or to the acquisition of a loan? This is a central issue. There are also many doctrines in this regard. The Supreme Court held that the benefit here was to obtain a loan. I don't think that's right, the benefit is obviously not a loan, but a mortgage. Therefore, he could not claim the return of the loan, but should claim the benefit of the mortgage. In a nutshell, an abstract provision needs an extremely clear basis for a claim to be applied to a very specific case. To construct the basis for claiming unjust enrichment (or infringement), it is necessary to have a systematic concept (elements and effects). The most controversial aspect of Chinese mainland's civil law at that time – which can be regarded as highlighting the characteristics of mainland civil law – is the provisions on personality rights, and the biggest problem is that the basis of the claim is only one article, that is, Article 1165. There are dozens of articles on personality rights, and the basis for the right to claim tort liability is Article 1165, and the other provisions are its elements, definitions, and legal effects. The premise of infringement of personality rights is the same as that of infringement of property rights, which requires intent or negligence. Therefore, the section on personality rights is a defining and supplementary provision. In retrospect, an important enlightenment from the above case is that in order to discover and construct an important basis for claims, it is necessary to re-propose the elements and effects of unjust enrichment in the form of infringement of rights and interests. As for its application and interpretation, it is also appropriate.

3.3 The construction of the law of unjust enrichment

The 2012 Taishangzi No. 1722 judgment of the "Supreme Court" of Taiwan has five important significance:

First, it is necessary to clearly affirm the non-uniform theory. On the one hand, this is the result of many years of accumulated judgments, and on the other hand, it is also deeply influenced by doctrine and inherited from Germany law, combining theory and practice to promote the progress of law.

Second, the "court" held that the payment-type unjust enrichment is based on the injured party's conscious and purposeful enrichment of the property of others, and its key feature is that it emphasizes the purpose of payment, which constitutes the basic element of the payment-type unjust enrichment claim.

Third, the "court" clearly emphasized the "unjust enrichment of rights and interests infringement" in the "non-payment type of unjust enrichment". Unjust enrichment is a legal discovery that is of great significance to the development of unjust enrichment. In addition, there are expense-based unjust enrichments and claim-based unjust enrichment.

Fourth, the theory of unjust enrichment should be made a general theory in practice and doctrine, and the application of the law should be stabilized.

Fifth, the "Court" created six types of unjust enrichment in this judgment, i.e., six independent bases for unjust enrichment claims. (Figure 1)

3.4 The basic legal relationship and the basis of the right to make a claim

3.4.1 Basic Legal Relationship

The foregoing judgment involves conspiracy to make false representations of intent and lack of authority to dispose of, which is helpful to understand the types of unjust enrichment and clarify the elements of the basis of the claim. For the sake of observation, the basic legal relationship between the parties is illustrated as follows:

3.4.2 Basis of Claim

3.5 The normative function of the unjust enrichment law

What about the function of unjust enrichment? This is related to the two types mentioned above.

3.5.1 Payment-type unjust enrichment

The purpose of the payment-based unjust enrichment is to adjust the theory of the causality of property changes, failed legal transactions (contracts), and property rights, and is closely related to the private law autonomy of the market.

Benefit-based unjust enrichment is related to private law autonomy and is designed to regulate failed market legal transactions. For example, if the sales contract is not established, the sales contract is invalid, or the contract is terminated. What is the applicable relationship between the obligation to return after the termination of the contract and unjust enrichment? Payment-based unjust enrichment is closely related to the theory of causality of property rights. If A sells a car to B, and B sells the car to someone else, ask A what rights can he claim against B and C? If the question is viewed by a person trained in claims, it will not be said what rights A can assert against B, but what rights A can assert against C. This is because it is possible to determine what rights A can claim against B by first determining what rights A can assert against B. If there is no cause in the act of adopting a property right, B obtains ownership, and A can claim unjust enrichment from B, then B has the right to dispose of it if it is sold to someone else, and C can obtain it even if it is in bad faith. However, if there is no causal act of taking the property right, and B does not acquire ownership, A can claim the return of ownership from B, and B has no right to dispose of it when it is sold to C.

Many scholars in Chinese mainland believe that the Civil Code has a bona fide acquisition system and does not need to adopt the causality of property rights. Good faith acquisition is costly, affecting the security of transactions. Assuming that some scholars do not agree with the causality of property rights, it does not matter, and it is theoretically possible. However, in this case, the unjust enrichment of the type of payment from A to B will become the type of unjust enrichment of the infringement of the rights and interests of A against B, because B has not acquired ownership and should not enjoy the benefit of payment, and B sells the house without ownership to others, and these things belong to A, B infringes on the ownership of A's rights and interests, and A claims unjust enrichment against B. Therefore, whether it is causal or uncausal, it is related to unjust enrichment, and unjust enrichment is everywhere.

Here are two more examples for reference:

a. A owes a debt ($1 million) to B, and instructs C to pay B, and later finds that A's debt to B has actually been paid off (instructed to pay, non-debt debt).

b. A bartered with B's B and transferred their ownership, and later found that the reciprocal contract was not established (invalid or revoked), which involves the principle of separation of creditor's rights and property rights in civil law and the non-causality of property rights.

3.5.2 Unjust enrichment in the form of infringement of rights and interests

Unjust enrichment is intended to supplement the function of ownership and tort law to protect rights and interests, and three cases are cited for reference:

a. In the above example of the reciprocity of paintings A and B, A sells the B paintings he has received to C, and A revokes his expression of intent to be defrauded.

b. A uses a laser on B's wall for commercial advertising.

c. A mistakenly believes that house A is his father's estate and takes possession of it, but does not know that the house is actually owned by B.

The relationship between unjust enrichment and contract, title protection and tort law is illustrated as follows:

The main function of non-payment unjust enrichment, especially the infringement of rights and interests, is to strengthen the protection of rights and interests, and even the protection of personality rights. The difference between unjust enrichment and tort is that tort must have intent or negligence and damage. However, unjust enrichment in the form of infringement of rights and interests does not require negligence and no damage. I took advantage of your absence at night to project advertisements for my goods on the walls of your house, and you asked me for infringement. I retorted, "What's your damage?" However, if you claim unjust enrichment in the form of infringement of rights and interests, you can say that I use your wall to cause you to suffer damage is to obtain the ownership content that should have been attributed to you, and there is no need to prove the elements of damage, intentional negligence, illegality, etc. Therefore, in this sense, unjust enrichment has a larger scope of application, including personality rights and so on.

In another example, A and B sign a lease for sale and purchase of a property, and A buys it from B, and the sale and purchase contract is later deemed invalid or invalid by the court. Then A thinks that B has given him the land, and later finds out that the contract is not valid, so he forcibly cultivates the land and fertilizes the crops so that they grow and bear fruit. What is the legal relationship in this case? In the early years, the "Supreme Court" of Taiwan did not recognize this problem, so they used the "rule" of unjust enrichment to solve this problem. If the courts still rule by law (rather than statutory law), then judges will be criticized. Sixty years ago, because the type of unjust enrichment has not yet been discovered, in order to solve the problem, the "law" judgment can only be used, waiting for subsequent developments. In this case, the non-payment type of unjust enrichment should be used to solve the problems of rights and interests infringement and expenses. From this law of unjust enrichment to typology, it has accumulated over decades.

It is important that the unjust enrichment of benefits is to adjust for the failure of private law autonomy. The contract is not established, the contract is invalid, the contract is terminated, etc., resulting in payment-type unjust enrichment. The biggest modern development of the unjust enrichment method here is that the traditional "payment" refers to the increase of someone's property, while the modern payment of unjust enrichment is different from the emphasis on the purpose of "payment". In other words, the payment is to increase the property of another person consciously (such as giving away property) and for a certain purpose (such as paying off debts).

Therefore, in Germany or Taiwan, an important question will be encountered when the court adjudicates payment-type unjust enrichment - is it consciously and purposefully enriching the property of others? Why? Because when someone claims unjust enrichment, a very crucial question is: who can claim the payment relationship of unjust enrichment against whom, so as to determine the object of return, clarify the allocation of risks, and enforce bankruptcy. So the concept of payment is very important. For example, if I owe you $100, and I mistakenly hand you $200 and give you an extra coin, and I say you should pay me back, what is the basis of the claim, and under which article? Any German professor, even an authority such as Yellin and Larenz, has to take a case analysis class, and he will have a case problem. Any German lawyer, from a judge of the Supreme Court to a judge of a county court, will answer the question of such a civil law case, and almost everyone has the ability to do so. Cultivating this every day for four years of college has become a part of their thinking life. I'll tell you a little story, when I was studying in Germany, I listened to Mr. Larenz give a lecture, and I sat at the front and let him see that there was a foreigner. After going on for a while, I knocked on his door, and when I saw him, he said, "It's good that you follow me to write your papers, where are you from?" You give me a report and I'll see how you are. It just so happens that Mr. Kitagawa of Kyoto University is also here, so you two will give a presentation. "Mr. Kitagawa is better educated than me, and Japan was already prosperous in law at that time, and Taiwan was far behind. From the title of his report, we know that we are far from him. Larenz published my paper and that of Mr. Kitagawa in the most famous magazine in Germany at the same time, which was the first time in my life that I was lucky. I asked Mr. Larenz, is it okay to follow you to write your doctoral dissertation? He said yes, you made a good report. So what to choose? Well, you can write five topics for me in a month. I studied all day looking for a few topics, and he looked at them and said, "You know a good understanding of Germany's civil law," and then he chose a topic. He said to me, the first thing to do after choosing this topic is to read the works related to this topic, and think about what your academic increment is. What can you add? If you can't, don't write it, because you're repeating, in the introduction. Therefore, the purpose of writing a doctoral dissertation is to be able to add and supplement this field. When writing a thesis, we must use legal methodology, such as explanation, continuation, and analogy, and we must also read books on methodology.

3.6 The reconstitution of the right to claim unjust enrichment

The unification theory and the distinction theory (type) of unjust enrichment affect the reconstitution of the right to claim unjust enrichment. The unified theory of unjust enrichment emphasizes that different types of unjust enrichment have the following common principles and constituent elements:

The non-uniform doctrine of unjust enrichment (distinction theory) holds that a distinction should be made between payment-type unjust enrichment and non-payment-type unjust enrichment (especially unjust enrichment for infringement of rights and interests), and the requirements for the establishment of their respective claims should be clarified:

The following diagram illustrates the reconstitution of the basis of the unjust enrichment claim:

As mentioned above, the principle of distinction between unjust enrichment (non-uniform theory) can better reflect the function of the unjust enrichment law and clarify the elements of the basis of the claim.

First, although in practice, although the distinction is adopted, some "Supreme Courts" of Taiwan still regard causing injury to others as an element when determining payment-type unjust enrichment, and fail to recognize that "causing injury to others" should be replaced by "payment relationship" in the case of payment-type unjust enrichment, and there is no need to discuss "causing injury to others". With regard to unjust enrichment in the form of infringement of rights and interests, some "Supreme Courts" of Taiwan have held that there must be damage to the so-called "causing harm to others", and still adopt the theory of equivalent causation, failing to understand that the normative function of "causing damage to others" is aimed at clarifying the parties and the object of infringement, and should not be judged by the existence of damage and equivalent causal relationship.

Second, in the application of the method of unjust enrichment, the unjust enrichment of the payment type should be examined first, and when the unjust enrichment of the benefit type is affirmed, the non-payment unjust enrichment (Subsidiaritat der Nichtleistungskondiktion) should be excluded for the same beneficiary object (Bereicherungsgegenstand).

Third, based on the relationship between unjust enrichment and the system of contract, protection of rights and interests, and tort law and their different functions, when dealing with specific cases, the competing claims should be examined and determined in order.

3.7 From the law of unjust enrichment to the theory of types of unjust enrichment

Looking back at the development of the law of unjust enrichment, it is worth mentioning in particular the 1942 Supreme Court of Taiwan Precedent No. 453: "After the judgment of the two parties confirming the invalidity of the sale contract, the appellant will still forcibly cultivate the disputed land, and the losses of seeds, fertilizers, cattle workers, and labor used by the appellee shall not be able to claim compensation unless the appellee's tortious acts." However, if the Appellee has received the agricultural products obtained from the Appellant's cultivation and it is obvious that the Appellant has benefited from it without legal reasons, causing damage to others, then the seeds, fertilizers, cattle labor, labor, etc. applied by the Appellant are not without the right to claim return according to the law of unjust enrichment. ”

This case emphasizes the so-called "unjust enrichment rule", reflecting the thinking method that the early unjust enrichment law lacked the basis for claims, just as the "Supreme Court" of Taiwan still uses the so-called tort law, making it difficult to apply the law accurately. After decades of joint efforts in theory and practice, we finally distinguished between payment-based unjust enrichment and non-payment-type unjust enrichment, constructed six types of unjust enrichment, and clarified the requirements for their establishment and the relationship between competition and cooperation. The task of law is to integrate practical cases and theoretical insights, construct a system of legal interpretation, create testable rules, form a consensus, stabilize the application of law, simplify the cost, and open up a broader direction of development, so that the law of unjust enrichment can better adjust the property change of the private law order without legal reasons, safeguard market economic activities, and protect property rights and interests.

4. The thinking model of the basis of the claim for unjust enrichment

Here are a few examples for consideration:

a. A and B conspire to buy and sell house A and transfer ownership. B borrows money from C and sets up a mortgage on house A.

b. A sells house A (10 million yuan) and car B to B and transfers its ownership. Subsequently, if A revokes his expression of intent on the grounds of error (by fraud or coercion), what is the legal relationship between the parties? What is the legal relationship between House A and C ($12 million) and Car B to D and transfer their ownership?

c. A instructs his debtor B to remit $1,000,000 to C to pay off A's debt to C. It was later found that:

(a) B does not know that his debt to A has been extinguished, but still remits money to C.

(b) A does not know that his debt to C has been extinguished, but still instructs B to remit money to C.

(c) A revokes his instructions to B on the basis of an error of intent, and B neglects to remit money to C.

d. A does not have the right to occupy the land that B has abandoned for many years and operate the parking lot.

e. A is not guilty of taking B's cement to build his house.

f. A uses the portrait and name of the deceased B for commercial advertising without authorization, and B's heirs cannot prove the damage. It should be emphasized again that unjust enrichment is divided into payment type of unjust enrichment and non-payment type of unjust enrichment, with a total of 6 types and 6 basis of claims, each with different requirements for establishment, but with uniform legal effect (181-183). When there is a contractual relationship, the right to claim unjust enrichment is excluded. The law-free management also excludes the right to claim unjust enrichment. Unjust enrichment and in rem (767) may be in competition. Unjust enrichment and tort of infringement of rights and interests may be in competition.

5. Payment-based unjust enrichment

5.1 Meaning and function

The purpose of the benefit-based unjust enrichment is to adjust the changes in property of failed legal transactions, and is of particular significance for the maintenance of the order of private law autonomy. The scope of unjust enrichment is related to whether or not the theory of causality of property rights is adopted. Example: A sells house A (or car B) to B, and B sells it to C and transfers all of it. Let's try to explain the legal relationship between the parties in the following three situations: a. The sales contract between A and B is not established. b. A revokes the expression of intent if it is wrong. c. A is deceived by B and revokes his expression. If the act of mining property rights is non-causal (Germany, Taiwan, China), the legal relationship is shown as follows:

If there is no causality in the act of not adopting property rights (Chinese mainland, but there is controversy), the legal relationship is illustrated as follows:

Based on the above analysis, the following conclusions can be drawn: First, if there is no causal cause in the act of mining the right in rem, then A has the right to claim for payment-type unjust enrichment (transfer of ownership registration) against B. This article adopts this view. Second, if there is no cause for the act of not adopting the property right, then A has the right to claim unjust enrichment for infringement of rights and interests against B (cancellation of registration).

5.2 Elements for establishment

With regard to the elements of unjust enrichment in the form of payment, which have been explained earlier, they are explained more clearly, and for ease of understanding, they are illustrated as follows:

5.3 The relationship between the two people

Here are some examples for readers to ponder:

a. A does not have a ticket to take bus B.

b. A does not know that the debt owed to B has not been incurred or has been extinguished, and it is still paid.

c. A owes 100,000 yuan to B and mistakenly remits 200,000 yuan.

d. Bank A mistakenly transfers money to B's account.

e. A pays B's gambling debt of 100,000 yuan (paid for illegal reasons).

5.4 Three-person relationship

As far as unjust enrichment in the relationship between the three parties is concerned, there are the following basic rules: (1) the payment type of unjust enrichment has priority; (2) the right to claim unjust enrichment should be determined in respect of individual payment relationships; (3) The concept of payment should be taken as the starting point, and the legal value judgment should be considered.

There are the following types of cases of unjust enrichment in the relationship between three people:

5.4.1 Wrongful repayment of other people's debts

If A admits that his son damaged B's car and compensates B for damages. It was later discovered that the person who damaged car B was C. What is the legal relationship between the parties?

First, it involves unjust enrichment; Second, it is a payment-type unjust enrichment. Don't panic when you encounter such problems, the basis of the claim will not confuse us, and we can find a law to support A's request. The so-called practice makes perfect, and it is necessary to get used to taking a clause to form the basis of the right to claim any problem. Afterthought: Is the unjust enrichment of the benefit type valid? What benefits does B receive? Has A made any payments? Is the compensation conscious and purposeful? It's as simple as that.

5.4.2 Chain payment

For example, A sells A to B, and B resells it to C and transfers his ownership. The sales contract between A and B and B and C is not valid. Q: What is the legal relationship between the parties?

This case is used in Germany for school exams. There are many concepts involved in chain payments, that is, A can ask for B, and B can ask for C, so what does A ask for from C?

The Civil Code of Chinese mainland does not explicitly stipulate this. Another example of a chain payment is that A buys a car from B, A gives the car to C, and A asks B to deliver the car to C, and later finds that the contract between A and B and C is invalid or invalid. What is the legal relationship between the parties? This involves creditor's rights and changes in property rights. We must learn by example, not by memorizing textbooks. You can memorize textbooks, and you won't necessarily answer the case. The famous jurist ·Ernst Rabel emphasized that law is like the body, precedents are flesh and blood, and doctrine is nerves, and the three are one and cannot be separated. By reading more cases, thinking about cases, reading more court judgments, and reading more judgments of foreign courts, we can also introduce important judgments from Japan and other countries, and our contribution may be greater than writing an article ourselves. Important Germany judgments are systemic and can of course be introduced.

5.4.3 Shorten the payment

A buys computer A from B and resells the computer to C, and A instructs B to deliver the computer directly to C.

a. The contract of sale between A and B is not established;

b. The sale and purchase contract between A and C is not established;

c. The sales contract between A and B and A and C is not established (invalid or revoked).

The analysis of the above three situations is as follows: If the sales contract between A and B is not established, B has the right to claim payment for unjust enrichment against A. b. If the sales contract between A and C is not established, A has the right to claim payment for unjust enrichment against C. c. If the sales contract between A and B or A and C is not established (invalid or revoked), B has the right to claim for payment-type unjust enrichment against A, and A has the right to claim payment-type unjust enrichment against C; If A is unable to return the computer, the price shall be reimbursed.

5.4.4 Instructions for payment

If A owes $1 million to B, he instructs Bank C to make the payment, and then immediately informs C that the transaction has been withdrawn and the bank has made the payment by mistake. Q: What is the legal relationship between the parties? It is even possible to write a doctoral dissertation on this case. Unjust enrichment requires the integration of the relevant systems of civil law, not only in the unjust enrichment itself, but also in relation to other legal provisions: the interests of third parties, contracts, non-causality of property rights, and assignment of creditor's rights. It is necessary to understand all articles of civil law, and to understand a very complex and basic legal structure, that is, the legal structure of the payment relationship. We need to be able to distinguish between the relationship of payment, the relationship of consideration and the relationship of funds. What does an indication mean, is it an expression of intent or a quasi-legal act? What if one of these two causes does not exist or does not exist at the same time, what if it is only flawed, and so on.

Among the unjust enrichments paid in the three-person relationship, the type of indicative enrichment is the most common in theory and practice, which can be regarded as typical, and is the core issue of the unjust enrichment of the payment type. Article 710 of the Civil Code of Taiwan stipulates: "A person who refers to instructing securities refers to instructing another person to pay money, securities or other substitutes to a third party's securities." "In the case of unjust enrichment, the so-called instruction-payment relationship should be broadly defined, including verbal instructions, remittance instructions or transfer instructions between banks and customers, in addition to instructing securities, and its objects also include real estate, services, etc.

There are three parties to the type of case in which payment is indicated: one is the person who instructs, which is called the instructor; the second is the other person who is instructed, called the instructee; The third is the third person who receives the payment, which is called the recipient. The relationship that occurs by which the instruction is given is called the cause relationship (the underlying relationship), which can be divided into the consideration relationship and the financial relationship, and there are also giving relationships: (1) the consideration relationship, that is, the relationship in which the instructor causes the recipient to receive the payment, or to pay off the debt, or to the recipient as a gift, etc.; (2) the financial relationship (or the make-up relationship), that is, the relationship between the instructed person and the instructor, the reason for which is either to pay off debts, or to lend credit, etc.; (3) The giving relationship refers to the giving (Zuwendung) of the instructed person to the recipient, which is the act of performance or giving (the act of giving).

Here's a case to illustrate: A buys car A from B for $1 million, and A instructs his debtor C to pay B, with A as the instructor, C as the instructee, and B as the recipient. The relationship between A and B is a consideration relationship, the purpose of which is to repay the price, and the relationship between C and A is a financial relationship, and the purpose is to return the loan. C's payment of 1,000,000 yuan to B to pay off the debts in the consideration relationship and the financial relationship is for the purpose of performing the act, and this act of giving completes the two payments of A to B and C to A at the same time. For ease of observation, the diagram is as follows:

With regard to unjust enrichment in an indicative payment relationship, two basic types should be distinguished. The first is the causal relationship: the consideration relationship and the financial relationship (basic relationship) do not exist. The second is the flaw of the indication.

5.4.4.1 The causal relationship does not exist

5.4.4.1.1Basic relationship and dual authorization

In indicating the type of payment, there are two causal relationships (basic relationships), one is the consideration relationship and the other is the financial relationship (compensation relationship), which has been discussed earlier. In order to deal with the right to claim for unjust enrichment arising from the defect of the underlying relationship (invalidity, invalidity, revocation), it is first necessary to understand that the instructor instructs the instructed person to pay to the recipient, which is a dual authorization in nature, that is, the recipient can request payment in his own name due to the authorization of the instructor, and the instructed person can also calculate the instructor's calculation and pay to the recipient due to the instructor's authorization. Therefore, the payment of the instructed person is the same as the payment made by the instructed person to the instructor, and on the other hand, it is the same as the payment made by the instructor to the recipient, and due to the performance (giving) of the instructed person, two different payments are legally completed, one is the payment of the instructed person to the instructor, and the other is the payment of the instructor to the recipient.

The abstract theory of the foregoing can be illustrated by the example of the automobile sale and purchase in the foregoing: A should pay a price of 500,000 yuan when he buys a car from B, and instructs his debtor C to pay B. When C pays B based on A's calculation according to A's authorization, it completes two payments at the same time: one is the payment from A to B, which aims to pay off the price debt arising from the sales contract; The second is that C pays A, and the unjust enrichment claim is aimed at paying off the unpaid debts due to the borrowing.

The basic principles for handling the above-mentioned cases are as follows: first, in the payment of unjust enrichment, the party who has the right to claim unjust enrichment should be determined individually according to the payment relationship, and the payer shall request the recipient to return the benefits he received without legal reasons; Second, in the case of the type of payment indicated, the unjust enrichment arising from the defect of the underlying relationship (which does not exist) shall be dealt with separately as defects in the financial relationship, defects in the consideration relationship, and double defects in the financial relationship and the consideration relationship.

5.4.4.1.2 The opinion of the "Supreme Court" of Taiwan

The "Supreme Court" of Taiwan Region ruled in 1996 Tai Shang Zi No. 1842: "In the instruction payment relationship, the instructed person pays the recipient (a third party) in order to fulfill the agreement between the instructed person, and the instructed person has no purpose of paying to the recipient. If the legal relationship between the instructee and the instructee does not exist (or is not established, invalid, revoked or dissolved), the instructee shall only request the instructee to return the benefits he has received without legal reasons. As for the benefits received by the recipient, it is originally based on the payment of the instructor and not of the instructee, that is, there is no payment relationship between the instructee and the third party, and there is no legal relationship of unjust enrichment. ”

5.4.4.1.3 Case explanation

a. Under normal circumstances: the financial relationship and the consideration relationship are flawless, and there is no unjust enrichment of the payment type.

b. Defects in the financial relationship (compensation relationship): C's debt to A has been repaid, and C claims unjust enrichment against A.

c. Defects in the consideration relationship: The sales contract between A and B is not established, and A claims unjust enrichment against B

d. The dual defects of the financial relationship and the consideration relationship: the sales contract between A and B is not established, and the debt owed by C to A has been repaid.

5.4.4.2 Indicates a defect

A writes a cheque from Bank C and pays for the goods. In the following cases, who has to claim unjust enrichment against whom?

a. The cheque has a face value of $100,000 and Bank C has paid $120,000 by mistake.

b. B falsified a cheque of $200,000 and Bank C paid it without notice.

c. A revokes the entrusted payment, and the staff of Bank C neglects to pay attention, but the payment is still made.

5.4.4.2.1 Basic theories and thinking models

The characteristic of the instructive payment relationship is that the instructor "instructs" the instructee, pays the recipient, and completes the two payment relationships separately due to the payment of the instructee to the recipient. What should be strictly distinguished from "defects in the causal relationship" is "defects in instructions", that is, the lack or ineffectiveness of instructions. In this case, who should claim unjust enrichment against whom is an important issue of dispute in the triangular relationship. The defects of such instructions are either non-existent from the beginning or withdrawn later, and most of them occur in the form of non-cash payment transactions, which are closely related to banking business and social and economic activities. In the case of defective instructions, in addition to the concept of payment, it is also necessary to engage in the weighing of interests: on the one hand, it is necessary to protect the interests of customers in using the bank to engage in trading activities, and on the other hand, it is necessary to take into account the trust protection of bona fide recipients.

5.4.4.2.2 Case explanation

a. Lack of instructions for overpayment: A instructed C to pay $100,000 to B, and C to pay $200,000 by mistake. (Fig. 19)

b. Forgery of instructions: A sends instructions (checks) to B to request $100,000 from C, B rechanges it to $200,000, and C mistakenly turns it into payment. (Fig. 20)

c. Revocation of entrusted payment: A issues a cheque instructing Bank C to pay 1 million yuan to B, A revokes the payment entrustment to C, and the staff of Bank C mistakenly pays B.

This is an important and controversial issue. In the case of revocation of entrusted payment, it is difficult to assert who should claim unjust enrichment against whom, regardless of whether the concept of payment is adopted in a unified or non-unified theory. In terms of the balance of benefits for reliance protection and risk allocation, in principle, it is up to the bank to claim unjust enrichment against the issuer:

First, the bank staff neglected to pay attention to the fact that the payment entrustment had been revoked, and the payment was still made to the bearer, and the error existed between the invoicer and the bank, and it was advisable to seek a solution between the bank and the invoice.

Second, to maintain the security and convenience of bill transactions, it is necessary to avoid the legal status of the payee being affected by the relationship between the drawer and the bank.

Third, if the invoicer's original payment instruction is later revoked, resulting in the occurrence of the lack of instruction, it is imputable, and it should bear the risk of the right to give the instruction.

6. Unjust enrichment in the form of infringement of rights and interests

6.1 Basic theory

6.1.1The discovery of the law

Since the creation of the right of action for unjust enrichment in Roman law, the legislation of modern countries has mostly focused on payment-based unjust enrichment, and established a system of unjust enrichment law. The discovery of the type of "unjust enrichment for infringement of rights and interests" expands the scope of application and normative function of the right to claim unjust enrichment, strengthens the protection of rights and interests, and is of great significance to the development of the unjust enrichment system.

In the 90s Taiwan of the 20th century, the introduction of the theory of Eingriffskondition and the attribution of rights and interests in Germany law provides a tool for analysis and clarifies the basis for the application of the law, which is a major development in the continuation of the law of civil law and unjust enrichment.

The purpose of the claim for unjust enrichment is to strengthen the protection of the infringement of rights and interests, and it should be compared with the two important bases of claim in civil law, tort and in rem.

6.1.2 Infringement and infringement of unjust enrichment

The basic elements of the right to claim for the protection of rights and interests, the effect of infringement, liability

From the above table, it can be seen that the infringement of rights and interests is also protecting the ownership of rights and interests, which is different from tort in two points: first, it does not require the infringer's behavior to be illegal and responsible (intentional or negligent); Second, the victim is not allowed to suffer harm.

Here are three examples:

The most fundamental difference between unjust enrichment and the right to claim in rem is that it infringes on the ownership of the rights and interests of others (such as the possession, use, income, disposal, and ownership of the property), rather than that the infringement is illegal. With regard to the legal effect, it should be noted that when the interest is the ownership of the house, it is the transfer registration (179, 758) that should be returned in the case of unjust enrichment, and the cancellation registration in rem (767 I, middle paragraph); In the case of the registration of the house in which the interest he has received is the registration of the cancellation of the return of the unjust enrichment, which is the same as the right to claim in rem (767 I, Middle).

Here are three examples to illustrate. (Fig. 22)

6.2 The theory of unjust enrichment of rights and interests infringement and the reconstitution of its elements

6.2.1 Traditional Insights: A Review of the History of Theoretical Development

The "Supreme Court" of Taiwan ruled in 1997 Tai Shang Zi No. 1102: "The long-term occupation and use of the disputed land and the benefit of the appellee caused the appellee to suffer damage from unusability are contrary to the law of fairness and justice", holding that: first, the benefit received is equivalent rent; second, the injured person suffers damage from being unusable; Third, whether there is a legal reason, and the criterion for judging is the violation of fairness and justice.

There is room for exploration in the three points of the "court":

First of all, the "court" has long held that the benefit of possession and use of another person's land is equivalent rent, rather than the possession and use itself, which leads to the misconception that the statute of limitations for such unjust enrichment claims should be applied, or by analogy, the short-term statute of limitations (5 years) of article 126 of the Civil Code should be applied or applied by analogy.

Second, by taking the unusable damage to the injured party as an element, confusing unjust enrichment with tort, and failing to recognize the function of such unjust enrichment damage, is not to make up for the damage, but to remove the infringement of the rights and interests of others to belong to the benefit received without legal cause.

Thirdly, the justification of profit and loss changes based on "fairness and justice" is not generalized and cannot be used as a benchmark for judging whether the beneficiary can retain the benefits it receives.

From the above judgment, it can be seen that in practice, it seems that the function and establishment requirements of unjust enrichment for infringement of rights and interests were not clearly understood at that time.

6.2.2 The theory of illegality of infringement and attribution of rights and interests

Taiwan's "Supreme Court" ruled in 2013 Tai Shang Zi No. 837: "A person who receives benefits as a result of an infringement and causes damage to the victim may also constitute unjust enrichment, and it is not up to the question whether the infringement is established at the same time." The purpose of this infringing unjust enrichment function is to make up for the lack of normative function of the tort law, so as to maintain the proper ownership of goods and correct the phenomenon of improper movement of goods caused by the violation of the law of distribution of goods predetermined by the legal order. Therefore, if a person obtains benefits from content that should be attributed to the rights and interests of others due to infringement, and causes damage to others, and lacks legitimacy, that is, he obtains benefits that should belong to the rights and interests of others by improper means, and does not have the legitimacy of retaining interests from the value judgment of the attribution of rights and interests in the legal order, it can constitute 'unjust enrichment without legal reasons'. …… Therefore, even if Baowang Company used the business information obtained from the Appellant to manufacture machinery products and sell them to the Appellant's customers, it was not a tortious act, and there was no unjust enrichment at all, and the argument that it was unfavorable to the Appellant was particularly negligent. ”

There are two points that should be explained in this judgment: First, this judgment affirms the type of unjust enrichment that infringes rights and interests, and distinguishes it from tortious acts. Second, it is doubtful that the "court" proposed that "the interests of the content that should be attributed to the rights and interests of others by improper means" are not precise and should be explained. Infringement of the rights and interests of others is based on human acts, material-based acts (e.g., cattle of A accidentally eating flowers planted by B), and acts based on legal provisions (e.g., articles 811 and 816 are attached). It is not necessary for human acts to be inappropriate or illegal. For example, if a delivery person mistakenly delivers food to B's house, and B mistakenly believes that his mother bought it and eats it, it still constitutes an infringement of the rights and interests of others, even though it is not for improper means. In particular, it should be noted that this involves an age-old controversy as to whether the essence of unjust enrichment in the form of infringement of rights and interests is the doctrine of illegality or the doctrine of attribution of rights. Generally speaking, the ownership of rights and interests is adopted, and it does not matter whether there is impropriety or illegality.

6.3 The composition of the elements of unjust enrichment in the form of infringement of rights and interests

Unjust enrichment for infringement of rights and interests and unjust enrichment for payment have different normative functions, which have been explained above and are reflected in the requirements for their establishment:

First, benefit. The benefits of unjust enrichment in the form of infringement of rights and interests are basically the same as those in the type of unjust enrichment in the form of payment, and the basis for judging them is also based on a specific basis.

Second, the benefits of unjust enrichment in the form of benefits are based on the payment relationship. The benefit of unjust enrichment in the type of infringement of rights and interests lies in the infringement of the rights and interests of others, and the infringement of the owner's possession, use, income, disposal, etc., does not require the injured person to suffer damage. In addition to ownership, the so-called rights and interests include intellectual property rights, personality rights (commercialization of names and likenesses), and the right to dispose of illegal buildings. Infringement of the ownership of the rights and interests of others refers to the acquisition of content that should be legally attributable to others, regardless of whether it is illegal. The so-called direct damage to others means that the benefit and the damage are based on the same cause and fact that the object and the party are clearly benefited, and the damage is not based on another damage of the meaning of the fiscal and taxation law, nor is it based on the causal relationship.

Third, in the case of unjust enrichment in the form of payment, there is no legal reason for it, which refers to the lack of purpose of payment. In the case of infringement of rights and interests, unjust enrichment refers to the lack of legitimacy (legal basis or contractual relationship) of the benefit to be secured.

6.4 Case explanation

6.4.1 Possession, use, consumption, or disposition of other people's things without the right are common and typical types of unjust enrichment that infringe on rights and interests, and illustrate their legal relationships:

It should be emphasized that unjust enrichment begins with receiving benefits. In the absence of the right to occupy other people's land, the "Supreme Court" of Taiwan has always held that the benefits they receive are equivalent to rent, which is based on the view of cost saving. A more acceptable view is that the benefit received is the use of possession itself, which is equivalent to rent, and is the price that should be returned if the benefit received cannot be returned in its original form.

6.4.2 Borrowing a name for registration, which is an important issue for localization. For example, A registers the ownership of house A in the name of B, and B sells the house to C in bad faith and transfers the ownership of house A. Q: What is the legal relationship between the parties?

The "Supreme Court" of Taiwan recently held that the real estate borrowing registration contract is a debt contract between the borrower and the borrower, and the borrower usually has no right to manage, use, benefit or dispose of the borrowed property according to the agreement between the borrower and the borrower, but this is only an internal agreement between the borrower and the borrower, and its effect does not extend to a third party. If the owner is registered as the owner of the immovable property, he or she has the right to dispose of the immovable property by transferring the disposition of the immovable property to a third party. (2017 Tai Shang Zi No. 304 Judgment)

Refer to the "Supreme Court" of Taiwan to illustrate the borrowed name registration case:

6.4.3 Illegal subletting. For example, if A rents out house A to B, B breaches the contract and sublets one of the suites in the house to C. What rights can A assert against B? Can A claim B for the rent of the sublet? From the perspective of the basis of the claim, it is necessary to consider what is the basis of the claim that A can claim against B? That is, whether there is contractual negligence, whether there is liability for breach of contract, whether there is management due to cause, whether there is infringement, and whether there is unjust enrichment? First, the benefit claimed by A is the interest in collecting rent. Secondly, consider whether B has infringed on the rights and interests of others, that is, the attribution of rights and interests should be considered. It is generally believed that there is no unjust enrichment because when A rents the house to B, the right to use the house and other rights have been handed over to B, so A cannot claim unjust enrichment in the form of infringement of rights and interests, but can claim the termination of the lease contract based on breach of contract.

6.4.4 Attachment and unjust enrichment: infringement of rights and interests causes damage to others. If the infringement of the content of the rights and interests of another person is benefited, and the damage is caused to another person (direct), and the lack of legitimacy (legal basis or contractual relationship) to retain the interest shall constitute no legal cause. Ownership has a certain content, and the scope of rights and interests is easier to judge. From the above, it can be seen that the content of rights and interests is the core of the type of unjust enrichment that infringes rights and interests, and is closely related to the three elements of benefit, damage to others, and no legal cause, for example: A mistakenly takes B's fertilizer and mistakenly applies it to C's land; A mistakenly takes B's paint and mistakenly paints it on C's wall.

In practice, there is an enlightening legal issue: A mistakenly takes B's fertilizer and applies it to C's land. Q: Can B claim compensation from C under the unjust enrichment provision? The research opinion adopts B's opinion, and believes that "the so-called direct profit and loss change relationship should mean that the benefit is directly from the property of the injured person rather than through the property of a third party, when A mistakenly takes B's fertilizer, the ownership of the fertilizer still belongs to B, and C obtains the ownership of the fertilizer because the fertilizer has become an important component of the land (refer to Article 811 of the Civil Code), and directly receives benefits from B, and B may claim compensation from C in accordance with the provisions of unjust enrichment (refer to Article 816 of the Civil Code'). ["Judicial Yuan" 81.11.6 (81) Ting Min Yi Zi No. 18571 Letter to the Taiwan High Court] This case is very enlightening and can provide a more precise understanding of the elements of unjust enrichment in the form of infringement of rights and interests, and the diagram is as follows:

The theory of equivalent causation is replaced by the factual directness of the same cause of the change of property.

6.4.5 Infringement of personality rights and unjust enrichment: Expansion of the scope of protection

Personality rights have both moral and property interests, and the personality rights of the deceased should also be protected. Taiwan's Supreme Court recently adopted this view, and in 2015, Tai Shang Zi No. 1407 Judgment said: "According to the traditional personality right, it is a right with personality as its content, and the 'spiritual interest' that embodies the dignity and value of human beings as its object of protection, the spiritual interest cannot be calculated in money, does not have the nature of a property right, is inherently exclusive, and cannot be assigned or inherited." However, with social changes, scientific and technological progress, the development of communication undertakings, and fierce competition among enterprises, it is common to use personality traits such as names and portraits in commercial activities to generate certain economic benefits, and the personality traits are no longer simply enjoying spiritual interests, but in fact also generating certain economic interests, and the right to use such personality traits is not yet impossible to be inherited by their heirs, and there is no reason to allow a third party to use them for personal gain without reason. ”

Personality rights have dual interests, so when personality rights are infringed, the victim can claim against the infringer the economic benefits arising from the infringement of personality rights. In terms of specific calculations, it can be judged in combination with the degree of commercialization. More than ten years ago, there was a Germany judgment that a singer's reputation was infringed, and the court used this case to recognize that the infringement of personality rights can also produce rights and interests of unjust enrichment, that is, personality rights include property interests in addition to moral interests. Therefore, many academic works in Germany have commented on this: "The time has finally come." ”

The judgment of the Supreme Court of Taiwan is a major development in personality rights law, and it is deeply affirmed. Personality right is a kind of right of domination, and the right holder has exclusive and exclusive rights to the legal interests of personality property such as name, portrait, privacy, etc., which are the objects of transaction, and the infringer obtains the interests that should be attributed to the rights and interests of others, and in the absence of legal reasons, unjust enrichment should be established. If the use of a person's portrait or other personality legal interests without the consent of others is a use of such personality legal interests, and cannot be returned according to their nature, the consideration objectively payable for the use of such rights and interests shall be reimbursed. Whether the right holder intends to convert such personality legal interests into a value has no impact on the establishment of unjust enrichment, and only involves the calculation of the price to be paid.

6.4.6 Patent Infringement

Taiwan Supreme Court 2017 Tai Shang Zi No. 2467 judgment: "Unjust enrichment refers to the change of property that violates the principle of fairness, depriving the beneficiary of the benefits received, and for the purpose of adjusting his property status, its judgment should be based on the 'theory of ownership of rights', that is, if there is no legal reason and the object of rights and interests is violated to obtain its benefits, the object should be established for unjust enrichment, and it is not necessary for the beneficiary to be imputable and illegal." Once the dominance relationship of the patent right is damaged, along with the damage to the patent right, there will often be changes in improper property gains and losses, resulting in a situation of 'patent infringement' and 'unjust enrichment'. Articles 96 and 97 of the Patent Law stipulate that the remedies for patent infringement must be based on the infringer's intent or negligence, which is different from the requirements for the establishment of unjust enrichment. Since a patent right is also a property right, and the Patent Law does not exclude the application of unjust enrichment under the civil law, based on the property law system, the patentee has the right to assert its rights in accordance with the legal relationship of unjust enrichment under the civil law. The original trial court's assertion on this point is certainly not unfounded. However, according to the unjust enrichment system, it is not to make up for the damage, but to return the benefits that should not be obtained according to the content of the ownership of the rights and interests, so the scope of the return request under the unjust enrichment law should be based on the benefits received by the recipient, not the number of damages suffered by the claimant (refer to the 1972 Tai Shang Zi No. 1695 case of this court). In addition, the amount to be returned shall be calculated based on the time when the obligation to return is established. ”

6.4.7 Enforcement on the basis of non-existent rights

6.4.7.1 The lawsuit confirming the non-existence of the creditor's right shall be determined to be successful

The 24th Civil Division of the Supreme Court of Taiwan resolved on November 24, 1981: "After the enforcement of a non-litigation event is established, if the debtor files a lawsuit to confirm the non-existence of the claim and the judgment in favor is determined, the enforcement force of the original enforcement name shall be recognized and it can be determined that it does not exist." If enforcement is still in progress, the debtor may declare an objection in accordance with Article 12 of the Enforcement Law, and if the enforcement has been completed, the debtor may request the return of the benefits obtained from the enforcement in accordance with the provisions on unjust enrichment. If the creditor is liable for tort, it shall compensate the debtor for the damage suffered by the execution. ”

6.4.7.2 The registered person of immovable property shall be subject to compensation levied by the territory

If the predetermined land of the road is registered as owned by another person due to the wrong merger and division, the unjust enrichment may be established when the change of ownership of the land is registered and the other person receives compensation for the expropriation of the land. The Supreme Court of Taiwan held in 1985 that the so-called registration of Article 43 of the Land Law has absolute effect, which is to give absolute credibility to the registration for the sake of protecting third parties, so when a third party obtains land rights based on registration, it will not be pursued due to the invalidity or revocation of the registration reason, but this provision does not deprive the real right beyond the limits necessary to protect the security of the transaction (see Taiwan "Judicial Yuan" Yuan Zi No. 1919 Interpretation); In addition, if the registered nominee of the immovable property right is not the real right holder, the registered nominee shall not claim his rights against the real right holder, so that he or she can obtain compensation due to the form of registration, which is an unjust enrichment for the real right holder.

7. The development of the law of unjust enrichment in mainland China

7.1 Comparison of similarities and differences

The provisions of the Cross-Strait Civil Code on unjust enrichment are listed as follows:

7.2 The development of the law of unjust enrichment in Chinese mainland

The development of the law of unjust enrichment in Chinese mainland should have the following topics: First, integrate the doctrine of precedents and construct a theoretical system. Second, legal interpretation: clarify the elements and definitions of the basis of the claim (such as the concept of payment), and strengthen the connotation and argumentation of the application of law. Third, the continuation of the law: the continuation of the law of unjust enrichment, such as the tortious type of unjust enrichment. Fourth, the succession of legislation and doctrine: attach importance to the study of comparative law. Fifth, it is necessary to construct a system of unjust enrichment that can reasonably regulate private law relations: maintain the uniformity and consistency of the application of law, and promote the practice of the principle of justice in the same case and the same judgment.

8. Conclusion

The law of unjust enrichment began in Roman law and is consolidated in articles 812 and 822 of the German Civil Code. The successor of the "Civil Code" of Taiwan (Articles 179-183) is embodied in the basic provisions of an abstract principle: "A person who receives benefits without legal reasons and causes damage to others shall be liable for restitution." The task of Taiwan's legal interpretation is to sort out, analyze and review how Taiwan's "civil law" has inherited the jurisprudence of Germany law over the past 90 years, and through the joint efforts of practice and theory, reach a consensus, adopt the type theory, and distinguish unjust enrichment into payment type unjust enrichment (lack of purpose from the beginning, subsequent lack of payment purpose, and failure to achieve the purpose of payment) and non-payment type of unjust enrichment (rights and interests infringement type, compensation expense type, and expenditure expense type), and create six types of unjust enrichment claim basis from the early unjust enrichment law. This article adopts the method of legal interpretation, with the help of the succession of Germany law, and uses local cases to explain the functions and establishment requirements of payment-type unjust enrichment and rights and interests infringement type unjust enrichment, so that the unjust enrichment law becomes an understandable, learnable and demonstrable law, stabilizes the application of the law and provides the possibility of future development, so that unjust enrichment can more reasonably adjust property changes without legal reasons in private law. The theoretical development history of the unjust enrichment law and the construction of legal interpretation reflect the development process of "civil law" and civil law in Taiwan, or help to understand the unjust enrichment law and the direction of its future development in the Civil Code of Chinese mainland, and jointly promote the progress and development of civil law on both sides of the strait.