| In comparative law, there are three main disposal models for illegally caused payment, i.e., confiscation, non-restitution, and restitution. Among these, the confiscation model derived from the Civil Code of Soviet Russia has been on the wane. The non-restitution model derived from Roman law, despite having exceptions, has been subject to intense questioning due to multiple theoretical and practical challenges. Therefore, recent legislation tends to adopt the stance of allowing restitution, while introducing general clauses as a corrective mechanism to maintain flexibility. The General Principles of Civil Law and the Contract Law of China previously adopted a confiscation approach. However, the Civil Code of China removes the confiscation rule and does not explicitly treat it as an exception to unjust enrichment. Instead, it incorporated such performance into the general rules governing the invalidity of juristic acts, reflecting a distinct Chinese approach. This approach conforms to the trend of comparative law and is with rationality. According to Article 157 of the Civil Code, restitution of performance based on illegal grounds remains permissible. Yet, this conclusion is overly absolute, potentially undermining the objectives of legal policy and conflicting with the principle of good faith. Therefore, it is necessary to functionally integrate the purposes of Article 157 and Article 153 of the Civil Code, using Article 153 to guide the application of Article 157. Judges should be required to make an individual balance based on the principle of proportionality and in light of specific case circumstances during specific application. |
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