Right To The Appearance Of Responsibility

Rechtsscheinhaftung is not only the embodiment of subjective good faith principle , but also abstraction of specific systems such as apparent agency, good faith purchaser, apparent transference of creditor right, which belongs to the academic areas of medium-range theory. When study from the perspective of micro system is relatively mature, study from the perspective of medium-range theory could not only avoid metaphysics of the macro theory but also avoid losing research direction from the perspective of the micro theory, thus provide the practice of appropriate theoretical explanation.This thesis includes the following seven chapters:Chapterâ… serve as an introduction to the Rechtsscheinhaftung. The Rechtsscheintheorie, reflected by apparent agency, bona fide purchaser, apparent assignment of credit, and apparent partnership, originated from Wellspacher's revision to the "disposition authority theory" on the justification of bona fide purchase. The good faith purchaser obtaining the right means assignee is confident of the fact of transferor possession. The fact is different from disposition authority theory which approves transferor have the right of assignee or disposition authority. The Rechtsscheintheorie is the result of protection reliance on appearance.Rechtsscheintheorie is same to the theory of Rechtsscheinhaftung. The concept of Rechtsscheinhaftung may be put into two categories, general sense and narrow sense. And the narrow sense of Rechtsscheinhaftung only refers to the responsibility undertaken by appearance related person, which means the responsibility for appearance creation. The general sense Rechtsscheinhaftung is synonym of legal effect of appearance. Apart from the responsibility above, the general sense Rechtsscheinhaftung also includes the legal effect to appearance relier and apparent obligee. The present thesis takes a general sense.Chapterâ…¡is about the legitimate foundation of Rechtsscheinhaftung. First, the justification for Rechtsscheinhaftung lies in the externality and objectivity of judgment of legal facts, which forms objective civil cognitive methodology. As the object of civil cognition, the right is a concept, the wills is intrinsic and invisible. As the subject of civil cognition, humanity is a kind of limited "rational existence". And the cognition aim is assured truth decided by necessary action and urgent practice. All of above constitute the main body of objective cognition methodology which served as the cognitive justification of Rechtsscheinhaftung.Second, the justification for Rechtsscheinhaftung lies in the legal policy of static security inferior to dynamic security in the field of transaction and economic consideration. The legal policy is not an arbitrary and subjective supposition, while it is the result of value argumentation taking the freedom as the premise. Protection of reasonable expectations follows from the central importance of respecting the autonomy of rational, ethical beings. Reasonable expectation comes from the realization of free value; however, transaction expectation is satisfied with the aid of transaction security.From the perspective of economy, the disposition of rights and obligations in Rechtsscheinhaftung system favoring the appearance relier and discriminating against the appearance related person comes from two efficiency policy, they are Ex ante efficiency policy(in cases in which one of the two competing parties could have clearly prevented the occurrence of the conflict ex ante by incurring expenses relatively smaller than the value of the interests at stake, taking into account the probability of the occurrence of a conflict, priority should be accorded to the other party) and Ex post efficiency(in all other cases in which no party enjoys a clear advantage over the other in terms of the ability to prevent the conflict, priority should be granted to the party likely to suffer the greater loss ex post if he is denied priority and the other party prevails).Chapterâ…¢is about the system localization of Rechtsscheinhaftung. First, Rechtsscheinhaftung belongs to one kind of virtual image adjustment mode of the civil law. The virtual image adjustment mode of the civil law is divided into three kinds: the real image is superior to virtual image, the real image is conditionally superior to virtual image or the virtual image is conditionally superior to real image, and the virtual image is superior to real image. Rechtsscheinhaftung belongs to the adjustment mode of virtual image be superior to real image.Second, Rechtsscheinhaftung is a member of reliance protection system. The reliance protection system is composed of positive and negative reliance protection modes. Under the positive reliance protection mode, the same legal consequence as he wanted is endowed by law to appearance relier. Under the negative reliance protection mode, claim for reliance damages is endowed by law to appearance relier. Rechtsscheinhaftung is positive reliance protection mode, while reliance damages liability is negative reliance protection mode. The two forms reliance responsibility system together.Third, Rechtsscheinhaftung is the expansion or supplement of self-liability. First, Rechtsscheinhaftung is the expansion of self-liability, including negligent Rechtsscheinhaftung and causal Rechtsscheinhaftung. Second, Rechtsscheinhaftung is the supplement of self-liability, including riskful Rechtsscheinhaftung and pure Rechtsscheinhaftung.Chapterâ…£discusses the constitutive requirements of Rechtsscheinhaftung. This article reveals the constitutive requirements of Rechtsscheinhaftung including three aspect legal factors, the existence of appearance, reasonable reliance and imputation origin. Appearance is representation of legal fact. The existing of appearance is the core of the constitution of fact. Without appearance deviated from truth, Rechtsscheinhaftung is meaningless. No appearance, no Rechtsscheinhaftung. As protection reliance is the result of good faith principle, only meets the requirement of subjective good faith, and then the reliance is reasonable. The nature of Rechtsscheinhaftung is the primary obligation other than secondary liability. Moreover, Rechtsscheinhaftung belongs to one kind of tolerance obligation. Because of the nature of Rechtsscheinhaftung mentioned above, the terminology of "imputative origin" is quasi-applied in this thesis. Different with fault liability, Rechtsscheinhaftung is established by consequence but not by behaviors, no matter whether the appearance related person is wrong or not. So Rechtsscheinhaftung is consequential responsibility other than behavioral responsibility.Chapterâ…¤discusses the legal effect of Rechtsscheinhaftung. Structure of appearance legal relationship is the important factor affecting the effect appraises, therefore, as a premise problem this chapter firstly analyzes structure of appearance legal relationship and their decision influence on effect content of Rechtsscheinhaftung.Afterward this thesis has further comprehensively analyzed the legal effect of Rechtsscheinhaftung. The author thinks that the legal effect of generalized Rechtsscheinhaftung is to make appearance relier gaining the legal effect who originally pursue, "gaining the legal effect who originally pursue " is to " achieving wishes " not to " regard the falsehood as truth for the time being ". " Achieving wishes" is an appraisal pattern based on consequence, but "regard the falsehood as truth for the time being "is an appraisal pattern based on behavior. The Latin Maxim "Error communis facit jus" has been expressed protecting the reasonable reliance in modern civil law. The universality and uniformity of the error communis is the objective cause why the reliance is reasonable, therefore be protected by the law. Obviously, to make appearance relier gaining the legal effect who originally pursue is not persistently unreasonable, but has the base on protecting reasonable reliance, needing not draw support from tool of legal act. With the aid of legal act to protect reliance is completely a move unnecessarily.Beside "achieving wishes", the legal effect of generalized Rechtsscheinhaftung also includes narrow sense Rechtsscheinhaftung undertaken by appearance related person. On expanded meaning, the legal effect of Rechtsscheinhaftung also includes compensation liability undertaken by apparent obligee to appearance related person. This thesis argues that the compensation liability mentioned above has exceeded the scope of legal effect of Rechtsscheinhaftung, but this thesis has still discussed it for its relevance with Rechtsscheinhaftung.Chapterâ…¥is a structural analysis on rule of non-defense. After typing the non-defense rules in current law, the author analyzes the structure of non-defense rule, using the concepts and legal factors of Rechtsscheinhaftung, and has drew a conclusion that with the same as public reliance rule, the non-defense rule also belongs to Rechtsscheinhaftung norm from the point view of legal dogmatics.The non-defense rule is usually expressed as "should not defense the third party" or "should not oppose to the bona fide third party" from the aspects of norm. According to the pleas of defense rule, there are three types of non-defense rule, such as rule of "should not oppose to the bona fide third party with registration flaw (including non- registration cannot oppose to bona fide third party and false or wrong registration cannot oppose to bona fide third party)", rule of "should not oppose to the bona fide third party with internal agreement or internal restriction", and rule of "should not oppose to the bona fide third party with the invalidity or revocation of declaration of will". The structural analysis have been done on the three kinds of non-defense rule separately, and then the present thesis argues that the non-defense rule is in accord with the composition and validity of Rechtsscheinhaftung through comparing with public reliance rule, so it belongs to Rechtsscheinhaftung norm from the perspective of legal dogmatics.Chapterâ…¦is about legislation inspecting of Rechtsscheinhaftung in China. The chapter inspects the Rechtsscheinhaftung in China and by virtue of inspecting, the author studies some important systems on Rechtsscheinhaftung in China. According to the study, the author points out the deficiency and gives some improvement suggestions.Through above the analysis, the author concludes that a theoretical Rechtsscheinhaftung system should be established leading all the concrete Rechtsschein systems scattered in sectors of the civil law based on subjective good faith principle and the theory about explanation of declaration of wills from the view of rational meaning receiver.