In the event of void of contract: application of the restitution rules in the Chinese civil code
List of Authors
Deng Yunqi
Keyword
void, restitution rule, contract part of civil code
Abstract
If a contract that includes a payment is void, the rule of Article 157 of the Civil Code of PRC “return of the property” can be the relief of real right or the relief of obligation. In particular, when the contract is aimed at the transfer of ownership, and its public notice is not completed, the claim for recovery shall be established; on the contrary, the claim for unjust enrichment shall be established. The difference in contract type is decisive in determining the claim of restitution. In the event of the contract void, the right of claims derives from property law, unjust enrichment law， or contract law. Therefore, Article 157 cannot be used as the basis of the independent claim. Regarding forms of restitution, restitution in kind is the principle, and restitution in value is the supplement, but the parties may make a special agreement on the form. The scope of restitution for the recipient includes the extant enrichments and the fruits; meanwhile, its subjective state should be considered. If malicious, he should return the fruits that should have been collected but not collected. Overall, the Contract Part of the Civil Code realizes the renewal and expansion of unjust enrichment law.
Reference
1. Cui Jianyuan. (2016). Contract Law. 65.
2. Cfr., R. Scognomiglio. (2008). Contributo alla teoria del negozio giuridico. 394.
3. Chen Gen. (2017). Commentary on the General Provisions of Civil Law. Law Press,2,1106.
4. Du Xinlin. (Trans.). German Debt Law Subdivision. (Dieter. Medikus.) Law Press. (2018). 549.
5. F.Santoro-Passarelli. (2012). Docttrine Generali Del Diritto Civile. 244.
6. Hu Changqing. (1998). General Introduction to Chinese Civil Law. The China University of. Political Science and Law Press, 10, 328.
7. Liu Kaixiang. (2011). General Principles of Obligation Law. Peking University Press, 5, 43.
8. Liu Yanhao. (2013). The Formation and Development of Unjust enrichment. 80.
9. Liu Aihua. (2012). Clarification of the concept of unjust enrichment without a legal basis. Legal. Science, 6, 116.
10. Liang Huixing. (2019). Some Issues on the Draft Civil Code Sub-clause. Rule of Law. Studies, 4, 7.
11. Sun Peng. (2003).Real Right Behavior Theory and Unjust Enrichment. 3.
12. Wang Zejian. (2009). Unjust Enrichment. 90.
13. Wang Liming. (2017). Detailed Explanation of the General Provisions of the Civil Law. of the People's Republic of China. China Legal Publishing, 691.
14. Wang Liming. (2013). Research on Property Law. Renmin University of China Press, 7, 219.
15. Xu Defeng. (2016). On the Return of Benefits after a Contract is Unlawfully Void. Tsinghua Law, 2, 93.
16. Xu Diyu. (2005). A teleological explanation of the Doctrine of the Causelessness of. Acts in rem. Chinese Jurisprudence, 2, 89.
17. Zou Hailin. (2000). Competitive Legal and Commercial Research on Unjust. Enrichment claims and other claims. Legal Business Research, 1, 68.
18. Zhao Wenjie. (2017). On Value Repayment in Unjust Enrichment and Statutory. Discharge. Chinese and foreign jurisprudence, 5, 1177.