三人关系型不当得利研究
发布时间：2018-08-19 11:36
【摘要】：三人关系型不当得利是不当得利法研究中的一个前沿和难点问题,其学理思考较为晦涩艰深,Zimmermann教授称其为“遥远晦暗角落的令人生畏的灌木丛”,Visser教授称其极为“桀骜不驯”。三人关系型不当得利是民法学理从参与不当得利法律关系的当事人数量角度提出的划分和考察方法,是指那些在事实构成上涉及到至少三个当事人的情形下不当得利法应当如何适用的问题,称其为“三人”主要是一种学术习惯。从其渊源流变来看,与三人关系型不当得利有关的理论形成了两个大的流派,意思主义和衡平主义。意思主义原理起源于罗马法请求返还之诉的意思主义清算方向,而后由德国民法学者维尔伯格、克雷默尔、克特尔、卡纳里斯等一系列学者完成系统的理论总结,其最显著的特征是凸显了当事人目的意思的决定作用,按照当事人的目的意思而在相反方向上决定不当得利返还请求权的方向。意思主义与不当得利学理的区分说相适应,是德国法和受德国法影响的我国台湾地区民法学上的通说。在意思主义原理之下,三人关系型不当得利属于不当得利的下位概念,涉及不当得利的法律关系被区分为给予(出捐)关系和给付关系,给付关系又可以分为对价关系和补偿关系,给予与目的意思相结合才构成给付,不当得利返还一般在给付关系当事人之间进行,即在对价关系和补偿关系中,给付障碍之所在即不当得利返还之所在,原则上不允许穿透追索或双重不当得利请求权的存在。在少数例外情况下,才可以追索出捐关系或者间接得利。意思主义原理在两人关系和三人关系中是相通的,又基于给付型不当得利对非给付型不当得利的优先性,从而意思主义构成整个三人关系型不当得利的基础。意思主义原理之下的三人关系型不当得利的学理分类包括指示给付关系、给付连锁等典型类型。衡平主义主要起源自罗马法的转化物之诉,经过中世纪的发展,一度在欧洲国家如奥地利、普鲁士等非常兴盛,法国最高上诉法院通过1892年Boudier案件判例,以三人关系型不当得利为基础塑造了不当得利法一般原则,在日本法中也有许多三人关系型不当得利的典型判例。衡平主义原理是与不当得利学理的统一说(衡平说)相适应的,其最显著的特征是学理和司法实践直接征引衡平等抽象观念,它原则上准许失利人超越直接给付关系而追索作为第三人的间接得利,也有学者称其为间接得利问题,该追索行为在学理上称为飞跃追索、穿透追索等,英美法上称之为蛙跳式越级。法国法、比利时法属于衡平主义的代表,当代法国不当得利法是由非债清偿诉和所得利益诉共同组成的,原则上承认间接得利的追索,体现出浓厚的历史传统和教义的色彩。而源于其学理和司法实践对抽象衡平观念的青睐,当代日本法兼具意思主义和衡平主义的特征。衡平主义原理之下的三人关系型不当得利的学理分类包括利益向第三人的无偿转得、以骗取的金钱利益进行的清偿、错误汇兑、转化物之诉(转用物诉权)等类型。从当前现状来看,我国民法学理对三人关系型不当得利还缺乏系统的总结整理,对司法实践中三人关系型不当得利的疑难案件的解释力也明显不足。在学理上展开对三人关系型不当得利的研究,对于丰富和发展我国不当得利法理论研究、推动民法学的发展进步、与不当得利国际学术研究成果相互呼应、为司法实践提供学理指导、为民法典编纂提供智力储备和支持等方面都具有重要意义。鉴于不当得利法发展的非线性特点,我国民法典对三人关系型不当得利的学理解释和规则建构,不宜单方面采纳某一种学理,而应当结合自身历史发展和现实状况,采取兼收并蓄、博采众长的态度,以意思主义为原则,但是在个别类型领域可以允许衡平主义的存在,允许其对意思主义进行适度的修正以实现在个案类型中的个别正义,这些具体类型应当以法律列举的方式进行规定,同时辅之以举证责任要求,防止其过度扩张而冲击债权法、破产法秩序。这种做法,既可以充分发挥一般原则的作用并与意思自治的民法基本原则相适应,也可以为衡平主义留下发挥作用的空间。
[Abstract]:Three-person unjust enrichment is a frontier and difficult problem in the study of unjust enrichment law. Its academic thinking is rather obscure and difficult. Professor Zimmermann calls it "the awesome bush in the remote and dark corner", Professor Visser calls it extremely "unruly". Three-person unjust enrichment is the civil law theory from the participation of unjust enrichment. From the perspective of the number of the parties involved in the legal relationship of interests, the method of division and investigation refers to the question of how the unjust enrichment law should be applied when at least three parties are involved in the factual composition. Calling it "three persons" is mainly an academic habit. The doctrine originated from the direction of the doctrine of liquidation of the claim for return in Roman law, and was summarized systematically by German scholars such as Wilberg, Kramer, Kettle and Kanaris. The most prominent feature of the doctrine is its prominence. The decisive role of the party's intent is to determine the direction of the claim for undue enrichment in the opposite direction according to the party's intent. The doctrine of intentionalism is compatible with the doctrine of distinction between undue enrichment and intentionalism. It is a general doctrine of civil law in German law and Taiwan, China, which is influenced by German law. Unjust enrichment belongs to the subordinate concept of unjust enrichment. The legal relationship involving unjust enrichment is divided into the relationship of giving (donation) and the relationship of payment. The relationship of payment can be divided into the relationship of consideration and compensation. In the relationship of consideration and compensation, the obstacle of payment lies in the return of unjust enrichment. In principle, it is not allowed to penetrate the existence of recourse or double claim for unjust enrichment. The doctrine of intentionalism constitutes the basis of the whole three-person Relationship-type undue enrichment. The theoretical classification of the three-person Relationship-type undue enrichment under the doctrine of intentionalism includes typical types such as the directive-payment relationship and the chain of payment. After the development of the Middle Ages, the suit of things once flourished in European countries such as Austria, Prussia and so on. The French Supreme Court of Appeal established the general principle of unjust enrichment based on the three-person relationship unjust enrichment through the Boudier case in 1892. There are also many typical cases of unjust enrichment based on the three-person relationship in Japanese law. The principle of equitable doctrine is adapted to the theory of the unity of unjust enrichment (equitable doctrine). Its most prominent feature is that doctrine and judicial practice directly levy and weigh the abstract concept of equality. In principle, it allows the loser to go beyond the direct relationship of payment and pursue the indirect enrichment as a third party. Some scholars call it the problem of indirect enrichment. Behavior is called leaping pursuit, penetrating pursuit in theory, and leaping frog jump in Anglo-American law. French law, Belgian law belongs to the representative of equity. Contemporary unjust enrichment law in France is composed of non-debt liquidation litigation and interest litigation. In principle, it admits the pursuit of indirect enrichment, reflecting a strong historical tradition and doctrine. The doctrine of unjust enrichment of the three-person relationship under the principle of equity includes the free transfer of interests to a third person, the liquidation, misexchange, and transfer of deceived monetary interests. From the current situation, China's civil law theory is still lack of systematic summary and collation of three-person relationship unjust enrichment, and the interpretation of difficult cases of three-person relationship unjust enrichment in judicial practice is obviously inadequate. It is of great significance to develop the theoretical research of unjust enrichment law in China, promote the development and progress of civil law, echo the achievements of international academic research on unjust enrichment, provide academic guidance for judicial practice, and provide intellectual reserve and support for the compilation of civil code. The academic interpretation and rule construction of the unjust enrichment of the three-person relationship should not unilaterally adopt a certain doctrine, but should adopt an attitude of incorporating all the advantages of the masses, taking the doctrine of will as the principle, combining with its own historical development and actual situation, but allow the existence of equitable doctrine and its doctrine of will in certain types of fields. Appropriate amendments should be made to achieve individual justice in the types of cases. These specific types should be prescribed by way of legal enumeration, supplemented by the burden of proof, so as to prevent their excessive expansion from impacting the law of creditor's rights and the order of bankruptcy law. This approach can give full play to the role of general principles and civil law with autonomy of will. Adapting to the basic principles can also play a role in equity.
【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D913
，
本文编号：2191539
[Abstract]:Three-person unjust enrichment is a frontier and difficult problem in the study of unjust enrichment law. Its academic thinking is rather obscure and difficult. Professor Zimmermann calls it "the awesome bush in the remote and dark corner", Professor Visser calls it extremely "unruly". Three-person unjust enrichment is the civil law theory from the participation of unjust enrichment. From the perspective of the number of the parties involved in the legal relationship of interests, the method of division and investigation refers to the question of how the unjust enrichment law should be applied when at least three parties are involved in the factual composition. Calling it "three persons" is mainly an academic habit. The doctrine originated from the direction of the doctrine of liquidation of the claim for return in Roman law, and was summarized systematically by German scholars such as Wilberg, Kramer, Kettle and Kanaris. The most prominent feature of the doctrine is its prominence. The decisive role of the party's intent is to determine the direction of the claim for undue enrichment in the opposite direction according to the party's intent. The doctrine of intentionalism is compatible with the doctrine of distinction between undue enrichment and intentionalism. It is a general doctrine of civil law in German law and Taiwan, China, which is influenced by German law. Unjust enrichment belongs to the subordinate concept of unjust enrichment. The legal relationship involving unjust enrichment is divided into the relationship of giving (donation) and the relationship of payment. The relationship of payment can be divided into the relationship of consideration and compensation. In the relationship of consideration and compensation, the obstacle of payment lies in the return of unjust enrichment. In principle, it is not allowed to penetrate the existence of recourse or double claim for unjust enrichment. The doctrine of intentionalism constitutes the basis of the whole three-person Relationship-type undue enrichment. The theoretical classification of the three-person Relationship-type undue enrichment under the doctrine of intentionalism includes typical types such as the directive-payment relationship and the chain of payment. After the development of the Middle Ages, the suit of things once flourished in European countries such as Austria, Prussia and so on. The French Supreme Court of Appeal established the general principle of unjust enrichment based on the three-person relationship unjust enrichment through the Boudier case in 1892. There are also many typical cases of unjust enrichment based on the three-person relationship in Japanese law. The principle of equitable doctrine is adapted to the theory of the unity of unjust enrichment (equitable doctrine). Its most prominent feature is that doctrine and judicial practice directly levy and weigh the abstract concept of equality. In principle, it allows the loser to go beyond the direct relationship of payment and pursue the indirect enrichment as a third party. Some scholars call it the problem of indirect enrichment. Behavior is called leaping pursuit, penetrating pursuit in theory, and leaping frog jump in Anglo-American law. French law, Belgian law belongs to the representative of equity. Contemporary unjust enrichment law in France is composed of non-debt liquidation litigation and interest litigation. In principle, it admits the pursuit of indirect enrichment, reflecting a strong historical tradition and doctrine. The doctrine of unjust enrichment of the three-person relationship under the principle of equity includes the free transfer of interests to a third person, the liquidation, misexchange, and transfer of deceived monetary interests. From the current situation, China's civil law theory is still lack of systematic summary and collation of three-person relationship unjust enrichment, and the interpretation of difficult cases of three-person relationship unjust enrichment in judicial practice is obviously inadequate. It is of great significance to develop the theoretical research of unjust enrichment law in China, promote the development and progress of civil law, echo the achievements of international academic research on unjust enrichment, provide academic guidance for judicial practice, and provide intellectual reserve and support for the compilation of civil code. The academic interpretation and rule construction of the unjust enrichment of the three-person relationship should not unilaterally adopt a certain doctrine, but should adopt an attitude of incorporating all the advantages of the masses, taking the doctrine of will as the principle, combining with its own historical development and actual situation, but allow the existence of equitable doctrine and its doctrine of will in certain types of fields. Appropriate amendments should be made to achieve individual justice in the types of cases. These specific types should be prescribed by way of legal enumeration, supplemented by the burden of proof, so as to prevent their excessive expansion from impacting the law of creditor's rights and the order of bankruptcy law. This approach can give full play to the role of general principles and civil law with autonomy of will. Adapting to the basic principles can also play a role in equity.
【学位授予单位】：湖南大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D913
，
本文编号：2191539
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