Both Li and Wang are employees of Zhang, the owner of an individual building. At noon on June 20, 2007, when Zhang invited Li and Wang to a restaurant for dinner, Li said that he could finish 10 bottles of beer in half an hour. Wang doesn't believe it. He took out the mobile phone he had just bought for three days and said, "If you can finish the 10 beer in half an hour, the mobile phone I just bought is yours." After that, Wang took out his mobile phone and put it in front of Li. After listening to this, Li asked the restaurant waiter to bring 10 bottles of beer and drink all the beer within the specified time. When Zhang saw that Li had finished his beer, he picked up his mobile phone and asked if Wang's speech counted. Wang patted his chest and said, "A word from a gentleman is a promise that cannot be recalled." After that, ask Zhang to give the phone to Li. Afterwards, Wang repented. After many unsuccessful negotiations with Li, he sued Li to the court and asked Li to return his mobile phone.
divergence
In the trial of this case, there are two different views:
The first view is that both Li and Wang are persons with full capacity for civil conduct, and the content of their drinking and gambling agreement is the true intention of both parties, which does not violate the law, so Wang's claim should be rejected.
The second view is that the contract signed by Li and Wang is a lucky contract. Although it was the true will of both parties at that time, the agreed content was gambling, which violated the public order and good customs of society. At the same time, the mobile phone obtained by Li has the nature of unjust enrichment, and Wang's claim should be supported.
Comment and analysis
1. In China's civil law theory, the lucky-to-shoot contract means that both parties decide the gain or loss of property based on the success of an uncertain event in the future. It has the following basic characteristics: 1. The transaction object is "luck" or "hope". 2. Establishment is special, that is, it takes effect immediately. 3. The risks borne by both parties are unbalanced. 4. It has the relativity of equivalent compensation. Civil contracts generally implement the basic principle of equivalent compensation, but lucky contracts seem to run counter to the principle of equivalent compensation on the surface, because in the end, one party pays the price or gets nothing. 5. It has strict adaptability and integrity. Because the lottery contract has the characteristics of contingency and contingency, it is easy for the parties to violate public order and good customs when concluding an agreement, so the conclusion and performance of the lottery contract must have strict applicability.
In China's current laws, only insurance contracts are normative lucky contracts. In real life, people often persuade or trade some uncertain matters for economic or educational or entertainment purposes, such as betting, futures trading contracts, lottery or lottery contracts, prize-winning sales contracts, financial futures, financial options, forward foreign exchange transactions, stock index transactions, etc. , are all lucky contracts, and these lucky contracts either have some policy provisions or have no provisions at all. According to the provisions of Article 124 of China's Contract Law, the general provisions of this Law shall apply to contracts that are not clearly stipulated in the specific provisions of this Law or other laws, and the closest provisions of this Law or other laws may be referred to. These lucky contracts can only obtain the legal status of nameless contracts in our country's law.
However, the legality of a civil juristic act depends on three factors: whether the subject is qualified, whether the expression of will is true and whether the content is legal. As a civil legal act, lucky shooting contract must also have the above three elements. Article 7 of China's General Principles of Civil Law, "Civil activities should respect social morality, and shall not harm social public interests, undermine national economic plans and disturb social economic order" and Article 58 of China's General Principles of Civil Law make up for the limitations of the law and standardize the value goal in order to conform to legal justice, that is, any civil legal act cannot violate public order and good customs, otherwise the law will make a negative evaluation, which is the public order and good customs in our country's laws. At the same time, Article 54 of the General Principles of the Civil Law stipulates that a civil juristic act is a lawful act of a citizen or a legal person to establish, change or terminate civil rights and obligations, and a civil act is not necessarily a civil juristic act. To become a civil juristic act, it must meet the standards that the actor has corresponding civil capacity, true will and does not violate the law or social public interests.
In this case, although both Li and Wang are qualified civil subjects with full capacity for civil conduct, and the agreement between the two parties is also the embodiment of their true meaning, their drinking and betting behaviors are purely entertainment activities, not legal acts. Because betting belongs to gambling, it not only violates the principle of public order and good customs in our civil law, but also is an act explicitly prohibited by our criminal law. Therefore, the contract concluded between Li and Wang should be considered as an invalid civil act.
Two, unjust enrichment refers to the interests that have no legal basis, or lose the legal basis afterwards and are identified as causing losses to others. There are four elements that constitute unjust enrichment: 1. One party must gain benefits, that is, one party gains or increases the accumulation of property or benefits due to certain factual results. 2. The other party is bound to suffer losses, that is, one party gains benefits and causes others to suffer property losses. There is a causal relationship between necessary interests and losses, that is, the loss of the victim is the result of the benefit of the beneficiary. 4. There is no legal basis for the necessary benefits, that is, there is no legal basis for obtaining benefits. Article 92 of China's General Principles of Civil Law stipulates: "If improper benefits are obtained without legal basis and losses are caused to others, the improper benefits obtained shall be returned to the person who suffered losses."
In this case, the reason why the mobile phone obtained by Li constitutes unjust enrichment is because Li obtained the mobile phone and caused Wang to suffer property losses, which has a causal relationship with Wang's property losses, and the benefits obtained have no legal basis. Therefore, Wang's request for Li to return his mobile phone should be supported.