Silence In Legal Act Communication

Silence has different legal meanings in the system of private law.In the field of general theory of civil law,silence can constitute a representation of a true meaning or just presentation or a tolerant agent or a agency of estoppel.In the field of contracts,silence can constitute a true commitment or an appearance of commitment,which may also constitute a breach of an obligation.In the field of tort,silence may constitute a promise made by the victim in a silent manner.It may also constitute a violation in the form of silence.Whether silence has legal significance and what legal significance it has,it depends on the interaction and trade-off relationship between autonomy of will and trust protectio.This paper only discusses the problem of silence in the communication of legal acts.The first chapter explains the position of silence in the legal act system.In the publicity system of expression of will,express and implied have the same expressive value,and silence does not have expressive value in principle because it does not have external disclosure.The change of the theory of expression of will leads to the change of the internal structure of the expression of will,especially the systematic influence of the expression of consciousness on the type structure of silence in the communication of legal acts,the educational basis of the formation of obligations and the legal effect.The second chapter discusses the normative basis and practice of silence in the communication of legal acts.At the normative level,our civil and commercial legislation gives different legal meanings to silence in different forms: first,silence has the effect of expressing meaning;second,silence has the effect of ending a certain undetermined legal stat;third,silence constitutes a breach of an obligation;fourth,silence constitutes the effect of trusting facts.At the practical level,the application of law presents the following three "limited" characteristics: first,the application of silence in legal communication is limited to the situation of expression of meaning;second,in strict accordance with the two types of law and agreement stipulated in the general principles of civil law,it is rare to demonstrate the legal effect of silence on the basis of the principle of good faith or trust protection;the third is to define the constituent elements of the legal silence.The third chapter analyzes the analytical framework and internal system of silence in the communication of legal acts.In Germany,there are three evaluation frameworks on the basis of the formation of silent legal obligations in the communication of legal acts:one is the theory of Flumer's legal act and the act of legal relevance;the other is the theory of the basic principle of "delayable" legal act by Bydlinski;and the third is Canaris' theory of duty of trust.In the field of legal behavior communication,self-determination,the principle of self-responsibility and the principle of trust protection together constitute the basic principles of silence in the communication of legal acts.There is no certain class order between the two,and the allocation of rights and obligations in the relevant legal system is the result of complementary and restricted cooperation among the above principles.The fourth chapter expounds the interpretation model and judgment benchmark of silence in the communication of legal acts.The evaluation of silence in the communication of legal acts forms a three-level interpretation model of "legal act theory-positive trust protection-negative trust protection".This evaluation system is hierarchical and is an analytical framework with sequence and progress.Behind each analytical framework is the basic principles that underpin it.Different judgment bases are extracted from the basic principles,and different types of sequences are formed according to the degree of judgment benchmark and its combination.The general judgment benchmark has the trust fact foundation,the trust of a bona fide third party and the accountability.The fifth chapter constructs the type system of silence in the communication of legal acts centered on the classification of the doctrine of law.Silence has different significance in civil and commercial communication according to different situations and fields,and presents a multi-level balance of private autonomy.There are four types of silence with legal significance: one is silence as meaning expression;the other is silence as meaning representation or non-intention representation;third,silence as other trusting facts;fourth,silence constituting breach of obligation.Chapter VI is the analysis of the legal effect of silence in the communication of legal acts.First,it is about the binding effect of legal acts.Silence,as an expression of meaning and other bases of trust,should be bound by legal acts.The silent who violates the obligation of explanation shall bear the restraint of the legal act in the type of case in which the unfavorable contract is concluded,and in the other types of cases,he shall bear the liability of similar contract,that is,the liability for fault in contracting.Secondly,the integration of the rules of resolution and elimination of the restraint of legal acts.This paper reconstructs the silent legal effect in the communication of legal acts and realizes the unity of legal effects in some fields.