不当得利法上获利返还责任之探讨--兼评最高人民法院相关司法解释

获利返还责任是不当得利法上最具争论的问题之一.传统民法对此有两种完全不同的学说,即获利应返还说与获利不返还说.最高人民法院的有关司法解释主张对受益人获取的利润应予收缴,其主张违背了民法的本质和基本理念以及经济规律的要求,<民法通则>的有关规定也过于原则性,而不具有可操作性.

A Discution on the Responsibility of Making a Profit and Returning on Unjustified Enrichment Law comments of the relevant judicial explanation of the Supreme People's Court

The responsibility of making a profit and returning is the most disputable problem in unjustified enrichment law. Traditional civil law have two different theory totally to this, one is the profit should be returned, another is the profit should not be returned. Thus the relevant judicial explanation of the Supreme People's Court maintain that the profit of the beneficiary obtained should be taken over, it has violated the essence , basic idea and demand for the economic law of the civil law, the relevant regulations of " general rule of the civil law "has overly sense of principle , and does not have effective nesses.