Study On The Legislation And Theories Of The Flaw Of Intent-indication From The Comparative Perspective

Many scholars at home and abroad are going in for the study of the theory of declaration of intention, including the principle of defects of declaration of intention. Jurists have also made great progress in this area. But forming work of the code of civil law is in the embryonic stage, although the theories and legislation of the defect in the expression of declaration of will have been mature, it is quite necessary for us to apply the theories and relative legislation to improve our civil law,or even to form our own civil code.The concept and the structure of declaration of intention, its basic factors, its causation and the relationship between the formation and effectivity of legal act and declaration of intention are closely related to each other. Without the concept and structure of declaration of intention there is not basic elements of declaration of intention; Without basic elements of declaration of intention there does not exist the causation of declaration of intention: The article holds that we shall differ the expression of intention in legal act from declaration of intention in everyday language. Meanwhile, without making clear the concept of declaration of intention we are able to tell the differences between declaration of intention as legal act and declaration of intention in everyday expressions. At present, there exists the dispute of" the theory of three elements of intent-indication","the theory of four elements of intent-indication" and "the theory of five elements of intent-indication". But the article holds that "the theory of three elements of intent-indication" is the basic of formation of intent-indication. At the same time, author feels among these three theories:"the principle of will","the principle of expression "and "the principle of electicism" in the society nowadays, the view of the principle of eclecticism is more meaningful. That is to say, in principle expression of will is effective, but in the circumstances that expression of will is imperfect, the validity of legal act is revocable.Mistake has common origins deriving from Roman law and the Aristotelian scholastic tradition. Nonetheless, even though it may be contended that mistake has developed uniformly, a closer look at mistake shows that this contention must be qualified. However, it will be seen that even though in the Civil Law, the evolution of the concept of mistake in the French and German legal traditions has been very different. The advent of the will theory marks a more clear-cut divergence of mistake theories in European legal systems. In addition, It is contended that the English view of mistake does not fit either of these theories. The central question which is relative to mistake is whether mistake destroys the parties'consent; An interrelated question that mistake raises is that of the will and intention of the parties. Medieval jurists thus added on the question of autonomous intention and will to the Roman law conception of mistake.Fraud is a false representation of fact, made with knowledge of its falsehood, or in reckless disregard whether it is true or false, with the intention that it shall be acted upon by the other party, and actually inducing him to act upon it to his injury. On the basic elements of formation of fraud, two legal systems stress the subjective intention, the illegality of act and the seriousness of objective consequence; As to the legal effects about the deception of a third person, obvious differences exist in different legal system. Some pay more attention to the protection of the defrauded, some pay more stress on the interest of the other party in the contract. The article believes that a party has the duty to inform the other party where he has known the fraud, so the defrauded has the right to avoid the contract; where the deception is presumed, although this measure helps to the defrauded, it may induce the other party of the contract to deny the fact the he knows the deception.Coercion as a defect of consent-like deception but unlike mistake-combines two distinct elements, namely a volitional defect(i.e. fear)with a morally reprehensible cause(i.e. duress or threat).While the first requirement identifies the factor which actually vitiates a contracting party's free volition, the second constitutes a restriction as to the circumstances from which a party's defect of volition may arise. But does coactus have true will? As for this, there are two different opinions. The first view holds that the coactus'consent does not reflect any free and genuine volition; The second argues that the coactus'consent is a true consent. Nonetheless, since Savigny the prevailing view argued that a coactus'consent was real despite being tainted with a defect. As to the question whether "reverential fear" is the element forming coercion, the law of duress developed in opposite directions in Civil Law and Common Law. While Civil Law systems opted for the exclusion of metus reverentialis from the purview of duress, metus reverntialis gave rise to an expansive equitable doctrine in Common Law countries that partially amends for the shortcomings of a too narrowly conceived common law doctrine of duress.Undue influence is the speciality of the legislation and theory in the Common Law. It originates from the defects of the legislation and theory of coercion. Usually, it is divided into actual undue influence and presumed undue influence. And the latter is divided into class2A and class2B undue influence. Because of countless linkage between this concept and fraud and coercion, the argument about the concept since it was born. And the arguments focus on the question how undue influence is affirmed because of its uncertainty and ambiguity. But the article holds that it plays some peculiar part in the perfection of the legislation and theory like coercion, fraud and mistake, the present standard of affirming undue influence may refer to the way in which the federal courts in the U.S deal with this problem.