论文部分内容阅读
拾得人拾得遗失物、漂流物、走失的饲养动物等,不得据为己有,而应返还给失主。《民法通则》第七十九条第二款对此有明文规定。但是,如果拾得人将拾得物据为己有,那么其性质如何?对这一问题,就目前理论而言,有认为是侵权行为的,也有认为是不当得利的。最高人民法院在1987年5月《关于贯彻执行<中华人民共和国民法通则>若干问题的意见》(讨论稿)第98条第一款中规定:“……拾得人将拾得物据为己有,拒不返还而引起诉讼的?可按返还不当利益处理。”但1988年1月该《意见》(试行)稿则改为:“……拾得人将拾得物据为己有,拒不返还而引起诉讼的,按照侵权之诉处
Lost people pick up the lost things, drifting, lost animals, etc., not according to oneself, but should be returned to the owner. Article 79, paragraph two, of the General Principles of Civil Law provides for this. However, what is the nature of the issue if, in the current theory, it is considered as an infringement, it is considered unjust enrichment if the acquirer takes the pick-up as its own. In the first paragraph of Article 98 of the Opinion on Several Issues Concerning the Implementation of the General Principles of Civil Law of the People's Republic of China (Draft for Discussion) issued by the Supreme People's Court in May 1987, it states: “... the pick-up person will take the pick-up as his own right, However, the ”opinion“ (trial version) draft was revised in January 1988 to read as follows: ”... The pick-up person will pick up the pick-up for his / her own use and refuse to return it Litigation, in accordance with the infringement of the Litigation Department