Right of restitution

下面为大家整理一篇优秀的assignment代写范文- Right of restitution，供大家参考学习，这篇论文讨论了恢复原状请求权。恢复原状请求权强调表面上的技术性恢复。大陆法系国家民法中的恢复原状是将非常态下的法律关系恢复到当事人之间初始法律关系状态，恢复原状请求权不仅运用于财产领域，也可以运用于精神损害领域。

In a broad sense, the right of restitution refers to "restoring the abnormal legal relationship to the initial state of legal relationship between the parties", including the following three specific forms: first, restoring the damaged material; Second, eliminate influence, restore reputation and apologize; Third, monetary payment, generally by the perpetrator or his entrusted repairman to carry out the actual repair, but also by the victim after the repair request to the perpetrator to restore the cost.

When the parties ask for the right of restitution, they should be regarded as the right of claim or the right of real right.

Some scholars believe that the right of restitution is a new debt-creditor relationship between the obligee and the obligor. The reasons mainly include the following aspects: for the convenience of the parties, some scholars believe that the obligee may require the obligor to compensate for the full value of the object. For the partial damage of the object, the obligee may only claim the obligor to compensate for the value of the damaged part. Compared with restitution, damage compensation can satisfy the request of the obligee and bring convenience to the obligor. The foundation of the right of claim for the non-original property of the damaged property is the real right, and when the original property no longer exists, the obligee naturally loses the real right of the original property. Therefore, the view that the right of restitution is the right of real right is lost. The extreme of this point of view is to limit the damage to the object to the loss of the object, the loss of the function of the object, it ignores that the restoration of the original state is based on the existence of the original object. Unrealizable, it is impossible for any way of civil liability to restore the damaged object to its original state, and it can only maintain its use value relatively as much as possible, rather than absolutely keep the same. Fourth, the embodiment of the autonomy of the will. After the contract is terminated, the two parties can independently choose whether to restore the original state or make compensation for breach of contract. Therefore, the realization of the restoration of the original state reflects the autonomy of the parties.

The real right person can choose between restitution and monetary compensation, and the real right person's rights can be effectively guaranteed. Its reason basically has the following respects: obligee disposes right. Restorable claim indemnity to the right of claim for real right, real right person have to choose to content protection way, the real right person can choose required the obligation to repair, rework, replace or restorable, also may require the obligor to compensation, the initiative in the holder, the real right exists beneath its security concerns are gone. The autonomy and control of the right personage, the real right person can ask the infringer to repair the damaged property and restore it to its original state, or ask the infringer to compensate for the damage. This precludes the infringer from unilaterally claiming damages and forcibly depriving the owner of the property rights; Economical social legal awareness, the right to claim for restoration of the original state under the way of real right protection, emphasizes the repair of the damaged property to restore it to the initial state as far as possible, compared with the way of monetary compensation, which gives full play to the effect of the material and reflects the legal awareness of the economical society.

At the legislative level, the right to restitution has been stipulated in China's property law, contract law, general provisions of civil law and tort liability law, but there are still some problems, such as the lack of detailed legal provisions, which brings great confusion to the application of law.

Article 97 of the contract law clearly stipulates that the rescission of a contract has retroactive effect, that is, "rescission causes the retroactive termination of a contractual relationship, as if the contract has not been established at the beginning". However, the concept of restitution is still limited to the restoration of the initial state between the parties, and the principle of full compensation has not been implemented. As a result of this narrow sense of understanding, on the restoration of the original scope of the restoration of a limited role.

The concept of restitution in China's property law takes its most basic meaning, that is, the obligee requests the obligor to repair the damage. Its scope is greatly restricted, so the restoration of the original state only emphasizes the technical restoration of the appearance, but ignores the restoration of the deep legal relationship, which will not fully realize the purpose of restoration to protect the legitimate rights and interests of the right holder. In the right to claim for restoration of original state in the property law, the real right holder can unilaterally choose the remedy measures for the damaged property, and its core lies in the emphasis on the restoration of the property as far as possible, reflecting the dominance of the right holder on the property.

Article 15 of tort liability law of our country clearly stipulates that restoring the original state is one of the ways in our country's civil liability system. "Restoration of reputation, elimination of influence and apology belong to the category of restitution in essence", which is mainly the relief measures in the spiritual field, but it is not clearly regarded as the way of restitution in the legislation of our country. In essence, the tort compensation should be the relative right claim, because it is based on the creditor's right, that is, the tort debt; Restoration of reputation, elimination of influence and apology is the right of personality, and the restoration of world right is essentially the right of absolute right, so the right of restoration of original state stipulated in article 15 of tort liability law appears a mixture of relative right and absolute right. The tort liability act according to the related provisions of article 15, the official explanation of the National People's Congress and the supreme people's court issued guidance, can deduce, tort liability law of restorable in particular the repair of the damaged item, emphasize on the surface of a technical recovery, to restore its physical characteristics to be destroyed before the state. It mainly includes repair and other means, but does not involve apology, elimination of influence, rehabilitation and so on.

In the contract law, tort liability law and property law, the concept of restitution is only mentioned, and the applicable rules are not further stipulated. Whether the right of restitution recognizes the principle of full compensation is not mentioned in the relevant legal provisions of our country. The principle of full compensation is that the responsible person makes full compensation for the loss caused by it, including not only the actual loss, but also the loss of the expected benefit.

The application of restitution to full compensation has not been resolved in our legislation. Whether the refunding of interest, fruits and use interests, the refunding of input costs and the risk burden when the refunding fails fall into the category of "restitution" in article 97 of the contract law, or the category of "other remedial measures" or "compensation for losses" has not been clearly specified in the legislation.

Crown power case, released the supreme people's court in accordance with the "contract law" the ninety-seventh regulation, the verdict: "swimming house money and interest of the company return the crown, the crown company asked to pay penalty due to breach of contract claims not to support, but in this case due to default of the swimming I company crown power is going to pay additional fees for buying offices, under the comprehensive consideration, the supreme people's court has decided the swimming I company compensate crown part of the company." A second trial of the supreme people's court according to the "contract law" article ninety-seven sentences swim company return the crown of the purchase and interest, not a clear definition of restorable behavior in the case, and only quoted the "contract law" article ninety-seven of the rules, made no mention of unjust enrichment rules, whether the purchase and the interest is restorable content, also don't know.

According to article 346 of the German civil code, "in a contract, one party reserves the right to rescind the contract, and upon rescission of the contract, the parties shall return to each other the payment obligations they have received. In the case of the use of services rendered or of things granted, the value thereof shall be reimbursed, or, where the contract provides for the payment of money, it shall be paid." This explicitly stipulates that the rescission of a contract has retroactive effect, that is, "the rescission makes the contractual relationship retroactive disappear, as if the contract has not been established at the beginning". Restitution has the direct effect of restitution retroactively. In German tort law, tort liability is basically compensation for damages, which is based on the principle of restitution. Its significance lies in the reconstruction of the original appearance of the legal interests of the obligee of compensation, just as if the damage accident has not occurred. In terms of the scope of restoration, "comprehensive return is emphasized. Besides the return of the value of the subject matter, interest, fruit and use interest, investment expense, etc., and even the risk burden when the original object cannot be returned".

Article 112, paragraph 1, of the Japanese civil code stipulates: "in the absence of any special expression of intent, the damages shall be calculated in money." Thus, it is determined that monetary compensation is the core of Japan's civil liability system, which is monetary compensation doctrine. However, the second paragraph of article 112 of the Japanese civil code has an exception that "restitution may be ordered as an appropriate punishment instead of compensation for damages", which indicates that restitution is also an important relief means in the Japanese civil law liability system under specific circumstances. In addition, Japan to prevent unfair competition law "restore credit" clause of article 33, also mentioned the "back", states: "due to his intentional misconduct or negligence in the implementation of unfair competition against the others in the operation of the credit, the tribunal may, in accordance with the business credit is the request of the offenders to judge the infringement on the business credit is take the necessary measures to restore business credit instead of damage compensation, or judgment for damages at the same time." Here instead of damage compensation stipulated in the "appropriate disciplinary action", the "necessary steps" generally refers to the apology AD, restore reputation, eliminate the influence, to apologize is essentially belongs to the category of restorable, it also embodies the "back" of the Japanese relief way used in property damage, not only applies to personality right infringement.

As a way of bearing civil liability, the right of restitution is to restore the abnormal legal relationship to the initial legal relationship between the parties. Restitution and monetary compensation constitute the basic method of damage compensation, among which restitution pays more attention to the protection of the intact interests of the victim, while monetary compensation protects the value interests of the victim. Tort compensation should follow the principle of "full compensation", which is also called "full compensation", that is, all the losses suffered by the victim due to the breach of contract by the breaching party should be compensated by the breaching party. Among them, restitution protects the full interests of the victim, while monetary compensation protects the value interests of the victim. Therefore, monetary compensation has certain limitations in the field of mental injury, because the field of mental injury relates to the life, health, reputation and other vital fields of the right holder, and once violated, the right holder will suffer great damage. If the damage occurs, the right cannot be fully relieved, and the right holder can be compensated through the tort liability system, such as damages, but the effect is very little.

Germany introduces the concept of "restitution", which takes into account the legitimate rights and interests of the obligee, and emphasizes that the principle of restitution is the compensation for damages, with monetary compensation as the exception. The German civil law first introduced the restitution system, that should focus on the protection of the victim's complete interests, the perpetrator should be restored to the state that should exist when there is no damage event, the victim's interests should be kept in the specific composition of the protection rather than just value. In the field of personality right relief, restitution plays an irreplaceable economic value.

"Property law" mentioned in article 36 of restorable belong to the category of creditor's right, there are the following reasons: first, belong to the category of damage compensation, those responsible for damage to property rights person, produce damage compensation obligations between both sides, the victim shall have the right to request the offender to content for repair, replacement, those responsible must also undertake the obligation to satisfy the requirement of the holder, from a legal relationship, the infringement of debt between the parties. Second, drawing on foreign legislation, article 249 of the German civil code provides relevant provisions on the right to claim for restoration of original status, and codifies them in the debt law. The provisions of article 213 of the Taiwan civil code on the right to "restitution" are also included in the debt law. Third, the property law does not only include the right to claim real rights. In chapter 3 of the real right protection of the property law, not only the way to protect the real right, but also the way to compensate for the damage and even the administrative responsibility and criminal responsibility are stipulated. Article 37 of the property law stipulates the liability for the damage and article 38 fixes the administrative responsibility and criminal responsibility.

China recognizes that the rescission of a contract has retroactive effect, and both parties need to restore the existing state to the original state when the contract occurred. This means that after the contract is terminated, a new debt-creditor relationship between specific parties is created, that is, the original condition is restored. In this case, the claim for restitution is based on the creditor's right, the content of which is the obligee's request for the obligor to restitution.

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