Abstract
The basis for scientific and reasonable legislation is definitely the maturity of theoretical research. Civil law is law of rights, and the civil law system is in fact a system of rights. In order to realize rights or to maintain the fulfillment of rights, “each right possesses or may extend certain right of claim”.
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Notes
- 1.
Wang (2001).
- 2.
Wang (2003).
- 3.
Wang (2002).
- 4.
Zheng and Chen (2003).
- 5.
- 6.
Wang (2002b).
- 7.
Bonfante (1992).
- 8.
Von Bar Christian (2001). Prof. Bar Von points out that unjust enrichment resulted from the avoidance of the contract is also the overlapping domain of tort law, for example, legislations and legal precedents of France, Portugal, Greece and Athens settle issues in this way. The author thinks that in China, unjust enrichment resulted from the avoidance of the contract belongs to contracting fault liability rather than tort liability issues. The former one is clearly stipulated in Contract Law of China.
- 9.
French Civil Code (Vol. II), at 1062–1064 (Luo Jiezhen trans., The Law Press, 2005).
- 10.
Markesinis (1997).
- 11.
Schwab (2006).
- 12.
Wang (2002a, 257).
- 13.
Christian Von Bar et al. (2008).
- 14.
Christian Von Bar (2001, 636).
- 15.
Shi (2000).
- 16.
Mu 1987.
- 17.
Cui (1992).
- 18.
- 19.
In recent years, judgments involving those “favorite” or typical ones from courts at all levels across the country are made partly public in publications and on legally specialized websites. A few cases are published with inadequate authority (although some are published together with comments from “Institute of Applied Jurisprudence” of the Research Office of the Supreme People’s Court). The following cases are concerned with the concurrence of tort liability and unjust enrichment: Zhong Yunjiao v. Guo Daifa (A case about restitution of compensation for traffic accident), Guangzhou Total Fitness Co., Ltd. et al. v. Yang Jianzun (A case about housing infringement); Wang Ning v. Beijing Co., Ltd. of China Telecom Co., Ltd. et al. (A case about copyright disputes); Beijing Gome Electric Appliances Co., Ltd. v. Xinyu Xindadi Electric Appliances Co., Ltd. (A case about trademark infringement and unfair competition dispute); and Xie Jianbo v. Xiamen Exhibition New Town Co., et al. (A case about copyright infringement).
- 20.
Christian Von Bar (2008, 319–326).
- 21.
Wang (2006).
- 22.
Wang (2001, 166–167).
- 23.
Larenz (2003).
- 24.
Hong (2003).
- 25.
Wang (2003b).
- 26.
“General damage” and “damage per se (which is also called as “actionable per se)” have a lot in common. In fact, within the scope of general damage, damage is presumed. Christian Von Bar (2001).
- 27.
VII-3:102: disadvantage (1) A person is disadvantaged by: (a) a decrease in assets or an increase in liabilities; (b) rendering a service or doing work; and (c) another’s use of that person’s assets. (2) In determining whether and to what extent a person sustains a disadvantage, no regard is to be had to any enrichment which that person obtains in exchange for or after the disadvantage. See supra note 13, 320.
- 28.
Wang (2002a, 143).
- 29.
VII-4:101: An enrichment is attributable to another’s disadvantage in particular where: (a) an asset of that other is transferred to the enriched person by that other; (b) a service is rendered to or work is done for the enriched person by that other; (c) the enriched person uses that other’s asset, especially where the enriched person infringes the disadvantaged person’s rights or legally protected interests; (d) an asset of the enriched person is improved by that other; or (e) the enriched person is discharge from a liability by that other. See supra note 13, 321.
- 30.
Id., 320. VII-3:101: Enrichment (1) A person is enriched by: (a) an increase in assets or a decrease in liabilities; (b) receiving a service or having work done; or (c) use of another’s assets. (2) In determining whether and to what extent a person obtains an enrichment, no regard is to be had to any disadvantage which that person sustains in exchange for or after the enrichment.
- 31.
- 32.
Wang (2002a, 151).
- 33.
Christian Von Bar (2001, 639–644).
- 34.
Id., 644–646.
- 35.
Id., 642–643.
- 36.
Id., 640.
- 37.
Shi (2000, 91–92).
- 38.
Sun (1985).
- 39.
Wang (2002a, 211–212).
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Zhang, X. (2018). The Relation Between Right to Claim for Tort and Right to Claim for Restitution of Unjust Enrichment. In: Legislation of Tort Liability Law in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6961-1_15
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