不当得利之“利”的界定

研究不当得利制度需要考虑当事人的主观愿望,从民法利益的概念入手,不当得利应是财产利益,而且要求受益人保有利益时不具有正当性。在存在给付关系的不当得利返还中,应当依据给付目的不能实现和善意保护为判断不当得利返还关系当事人的依据,不能直接依据得失之间的因果关系。适用《涉外民事法律关系适用法》第47条时,需要从不当得利之利的主观性考虑,对共同经常居所地和不当得利发生地做适当解释。

On Definition of Unjust Enrichment

The party＇s subjective will should be taken into account to research the system of the unjust enrichment. From the ＂interest＂ concept of the civil law perspective, the unjust enrichment belongs to the property interest, and it has no legitimacy for the beneficiary to keep it. When returning the unjust enrichment which has the relationship of payment, we can not directly depend on the relationship between gain and loss, hut shall be based on that the objective purpose can＇t be realized and the goodwill protection to apply No 47 article of Applicable Method of Foreign-related Civil Legal Relationship, which needs considering the subjectivity of the unjust enrichment and making proper interpretation to the common location where the unjust enrichment took place.