An Empirical Study on the Application of Law on Foreign-related Unjustified Enrichment and Negotiorum Gestio in China

Article 47 of the law of the People's Republic of China of law application of foreign civil relations stipulates the application of law in foreign-related cases of unjustified enrichment and negotiorum gestio. In this paper, there are 163 valid judgment documents made by courts invoking article 47. These judgment documents are analyzed from various dimensions to show the present situation in order to ascertain the judicial operation condition. In practice, the application of law has following problems: the characterization of unjustified enrichment and negotiorum gestio is improper; no legal basis of application of formula of attribution; the process of legal reasoning is illogical; the implied choice of law in the principle of autonomy is neglected; the application proportion of lex fori is too high. Therefore, China should strengthen the research about unjustified enrichment and negotiorum gestio; improve legislation constantly in order to realize the goal of codification; enhance the construction of judicial system and improve the professional quality of judicial personnel.