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作为大陆法系债法中的两大重要支柱,无因管理和不当得利一向被认为不仅在于处理利他的管理之后的费用求偿,而且也在于调整财产的不当变动,民法学界一向认为两者虽有竞合,但制度上还是各有所本。但观察两岸的裁判实务,无因管理中的管理行为很少涉及行为义务,而集中于费用求偿,大部分案例都与不当得利发生竞合。在我国民法可以选择对此二者粗线条立法,并不存在有如德、日民法及我国台湾地区“民法”的概念区分的情况下,学说继受应当立足于裁判实务,面向现代社会中法政策的实现问题,考虑无因管理独立于不当得利而存在的体系价值。
As the two important pillars of the civil law debt law, no management and unjust enrichment have always been considered not only for the treatment of altruism after the cost of compensation, but also to adjust the improper changes in property, civil law scholars have always thought that both Although competing, but still have their own system. However, observing the practice of refereeing the two sides of the Taiwan Strait does not involve the fact that the management behaviors in management seldom involve behavioral obligations and focus on the claim for expenses. In most cases, there is a coincidence with unjust enrichment. In our country, the civil law can choose the bold line of the two legislation, there is no such as Germany, Japan civil law and our country Taiwan “civil law ” the concept of distinction, the doctrine should be based on the referee practice, facing the modern society Policy issues, consider the value of the existence of the system as a result of management independent of unjust enrichment.