| Chapter I mainliy discussed Formation and Development of the Doctrine of Unconscionability.During the Roman law period,laesio enormis only focused on the imbalance of pure objective payment.Legal instruments regulating them include changes and the abandonment of contracts,which are intended to restore the status quo ante.During the common law period,the obvious unfair system formed the idea of malicious fiction(dolus re ipsa),which means that the actor has malice on the contract with objective obvious unfairness.In the period of Roman law,the rule of extraordinary damage was an exception in contract law and only applied to the contract of sale of real estate.In the common law period,because of the malicious theory of the transaction with the imbalance of objective payment,the rule of laesio enormis was extended applied.The expansion of the scope of application of modern obvious unfairness can be attributed to this theory.The malice in the dolus re ipsa comes from the theoretical presumption,which does not involve the subjective fault of the perpetrator,and is different from the real subjective malice(dolus ex proposito).Although this concept conflicts with internal doctrine and does not coordinate with laesio enormis,the annotated jurisprudence of the common law era still uses dolus re ipsa as a systematic annotation of laesio enormis.The fact composition of laesio enormis is objectively less than half,and there is no subjective evaluation of the beneficiary.Therefore,its legal effect is to amend the unbalanced legal relationship of payment,and does not punish the beneficiary.Although the common law era increased the subjective evaluation of beneficiaries,it did not question the means of contract change in Roman law.Because the jurists at the time began to discuss collateral gifts.According to some jurists,there is no reason to abandon contract for the imbalance of payment in incidental gifts.The idea of paying additional gifts(supplementum)is equivalent to the right of counterparty who pay the price from C.4.44.2(a.285).Obvious unfairness is allowed in natural law school,but its scope should be defined by malice and payment imbalance.For example,when a person has suffered more than half of the damage or a minor has entered into an unbalanced contract,although the content of the contract can be evaluated as improper or inappropriate,the contract of imbalance in payment is acceptable under the natural law school.At some point," dolus re ipsa" responded to some scholars' doubts about very damaging rules.Although later jurists have repeatedly questioned the correctness of the dolus re ipsa",the constitutive elements of the rules and the legal solutions related to them have not changed until the New Natural Law School.The content of legal regulation,through annotated law school and post-annotated law school,was determined by late scholars.The beneficiary of a manifestly unfair transaction has the option to pay the insufficient price or to tolerate the abandonment of the contract by the discriminated party.German Civil Code in 1900 ended the application of the doctrine of laesio enormis,and changed the fact of composition from objective element to dual elements.Since then,the legal concept describing the imbalance in the obligation to pay has undergone a paradigm shift in different legislative examples,resulting in new legal entities(Rechtsfigur),such as profiteering in German civil law and excessive gains in Swiss debt law.The system of profiteering and excessive enrichment adopts the dual elements,which increases the subjective elements.From the legal ethics,the beneficiary's behavior is unacceptable.Therefore,German law takes the principle of public order and good custom as its evaluation standard,and Swiss law takes the principle of good faith as its evaluation standard.However,the obvious unfair rule in modern civil law is the continuation of the idea of malicious fiction(Dolus re ipsa),not the very damaging rule in the source of Roman law.With the changing of composition of element,changed the effect of legal act of profiteering too.The abandonment(Reszission)of Roman law was replaced by the revocation of modern law.However,there are still individual legislative examples that retain an abandoned system,such as Italy keep the term of Reszission in legislation.From the doctrinal point of view,revocation only applies to defects of declaration of intention.By replacing the abandoned system with the revocation system,the law pedagogy has gradually pushed the concept of early payment equilibrium —the short and less than half rules into the field of meaning defects under the concept of autonomy of will,which can man finden in Dutch civil law.The practice of legal pedagogy seems to be correct,after all,there is no causal relationship between factual composition and legal consequences.Legal consequence is the evaluation of objective facts by law.The connection between them is not the connection at the natural level,but the connection at the legal normative level.The obvious unfair contract is made voluntarily by both parties,whether from the content of the legal act or the free expression of intention,the public power has no right to interfere with it.Modern legal regulation means can only find a reasonable explanation from malicious idea(dolus re ipsa).During the period of Roman law,the purpose of legal regulation about obvious unfair was to restore the balance of payment.However,the purpose of this legal regulation has been neglected because the constitutive elements of manifest injustice have changed from single element to double element.As a result,the addition of subjective elements gives judges the ability to evaluate the behaviour of beneficiaries,that is,whether their behaviour is unacceptable.The purpose of the obvious unfair standard in modern times is not only to correct the imbalance of payment,but also to punish the beneficiaries,so the beneficiaries no longer enjoy the means of legal relief.Chapter Two research on the basis of value under legal act of profiteering.The mainstream of legislative mode adopts revocable legal regulation means for profiteering.The reason why legislator chooses revocation from the invalid,the revocation,the change of legal means,mainly has the following value considerations:??does the legal means lie in line with the purpose? There is no doubt that revocation not only abrogates the validity of the contract and enables the contract to be restored to its original state,but also punishes the infringement of freedom of contract.??Is it necessary to cancel contracts with unbalanced payments? First of all,the concept of equilibrium of payment from the period of Roman law has not been recognized by the natural law school,and the theory of will has played an important role in the traditional doctrine.An imbalance in payment is more used to prove that there is unreasonable exploitation in the contract,namely,one party take advantage of the weak statute of another party.This point,the existence of exploitation in the contract,can been proved by dual elements.The act of exploitation violates the rights and interests of the weak,and protecting the weak is the responsibility and obligation of public power.Secondly,Exploitation is contrary to the principle of good faith(Vertragstreue),and legislators need to crack down on exploitation in order to maintain contract integrity.??Compared with invalid regulation,the means of revocation means and the purpose of its regulation are more proportional.Ineffective means are more discriminatory as compared with unconscionable contracts,because the injured party loss her expression of will in an invalid contract.As far as legislative value judgment of invalid is concerned,it is equivalent to treating the weak party as a person without capacity,who are unable to exercise a legal act.It is thought that,the legislator had no right to take a decision on behalf of a vulnerable party,to cancel the contract,which are concluded freely by that person,even they stande under a stressful environment.Simply to nullify the contract will deprive the free expression of a weak party.To some extent,invalid rules violate the meaning of the parties and run counter against the interests of the parties.The legislator must take into account that the maintenance of the contract also has some significance for the injured party.A judicial act of profiteering is regulated through revocation,it seems that it is a type of insufficient will or the will of the victim is infringed.However,as far as the degree of will infringement is concerned,it is weaker than coercion and fraud,and has not yet reached an independent type of insufficient will.The problem of excessive enrichment in Swiss legislation refers to the problem of agreement,not the problem of content of judicial act.This is different from the rule of laesio enormis and the rule of Wucher,which are regulated due to the defect of contract content.The revocation method gives the victim the right of choice,which also makes the legislator pay more attention to the personal interests in the value judgment of unconscionability.Jering once divided interests into public interests and private interests.Public interests are often protected by invalid regulations,while private interests are often protected by revoked regulations.This difference clearly shows the value orientation of the unconscionable rule,namely,the country that adopts the revocable legal regulation,obviously pays more attention to the protection of private interests.So in the interpretation of the constituent elements of obvious unfairness,the judgment standard should not be too high,just insist on whether the legal act of profiteering constitutes an infringement on the private interests.The purpose of the judicial regulation is to seek the balance of three kinds of interests.Specifically speaking,it refers to the balance between the interests of revocation the contract for the party who suffers the profiteering,the interests of the security of the legal order and the interests of contract maintenance for the beneficial party.The cancellation of the contract has the characteristics of integrity,which can not fully meet the expectations of the triangle of interests mentioned above.Although the imbalance of payment was eliminated by canceling the contract,it left sequelae in the aspect of interest protection and the stability of contract order.In view of the viewpoint,that in order to maintain the effectiveness of contract maximized,a judicial act can be partly revoked,which never change the unilateral nature of the legal regulation means of revocation,and partial revocation also infringes the autonomy of the beneficiary.A more appropriate means would be to prevent the cancellation of the contract by allowing the beneficiary to initiate a change of contract with the consent of the aggrieved person.That is to say,if the beneficiary is unwilling to bear the liability for damages in violation of the prior obligation from contract,he can increase the payment by the method of changing the contract(Vertragsanpassung)in order to restore the fairness of the transaction.However,if the discriminated party is unwilling to change,the contract shall be revoked.Chapter III emphasizes objective elements of unconscionability.In order to better understand the applicable objects and types of obvious unfairness,the first chapter studies the process of development from laesio enormis to obvious unfairness.Because of fixed quantitative standard,unconscionability rule limited extremely its range of application and only applies to land sale.In compared with Roman modified French law the proportion of quantitative standards and expanded the scope of application,it only applied to several special contracts,which specified in the civil code.In the process of modern legalization,some legislative examples do not quantify the objective elements as specific digital proportion,which replaced by uncertain concepts.Generally speaking,which describe clear quantitative standard,has a narrow scope of application.In the view of dogmatism,it is to prevent the impact on the stability of the civil law system.The newly promulgated Civil Code of our country adopts the dual elements theory on the obvious unfair rule,and it does not stipulate the specific quantitative standard concerning the objective elements.How to interpret the uncertain concept of obvious unfairness requires consideration of all the circumstances by judge in the specified case.What factors need to be considered can not be separated from the development of unconscionability rules.The idea of equivalent obstacle in Roman period limits the scope of application of obvious unfairness to double service paid contract,which directly affects European legislation,and even in some countries double-service paid contract is the only applicable object of obvious unfairness.Article 151 of our Civil Code does not explicitly limit the obvious unfairness to the double-service paid contract,which is related to our legislative tradition.Because from the time of the General Principles of Civil Law,the obvious unfairness is linked to the principle of fairness.If the principle of fairness in the Civil Code of our country refers to substantive fairness,then obvious unfairness is the concrete embodiment of the principle of fairness.If the principle of fairness in the Civil Code of our country refers to formal fairness,then obvious unfairness is the exception of the principle of fairness.However,no matte what opinion is taken,the scope of application of unconscionability is expanded by the principle of fairness.In judicial practice,legal act of profiteering can be applied to non-dual-service contracts,such as reconciliation,non-typical guarantee contracts,partnership contracts,gift contracts and so on.During measuring the objective element of obvious unfairness,the judge does not limit the measure of the benefit between the payment and the treatment of the payment.It can proceed from other interests,such as the unequal between rights and obligations,and the mismatch between the risk and the burden clause.Chapter 4 emphasizes subjective elements of unconscionability.After the less than half rules in Roman law,was the malicious idea of dolus re ipsa developed in common law.This idea directly influence the obvious unfair system in the codification of future generations.Firstly,the paradigm shift with concept,and secondly,the legislator added subjective elements to obvious unfairness due to dolus re ipsa.In the subjective elements,in addition to the victim's private autonomy,the legislator will also consider whether the beneficiary's behavior is unacceptable.Different legislative model have different basis value of judging concerning subjective elements,For more details,see Chapter 2,Section 2.For example,German profiteering is based on the principle of public order and good custom,Switzerland's excessive enrichment is based on the principle of good faith as the basis value of judgment,and the abuse situation in Dutch legislation is based on the insufficiency of will as the basis value of judgment.From the behaviour of beneficiaries,can we judge the profiteering act and excessive enrichment whether it belongs to violation of good custom or violation of good faith.treacherous.In view of act of victim can we judge Abuse of the situation whether it constitutes a type of flaw of declaration of intention.Subjective elements include two elements,one is the weak statutes that affect the subjective judgment of the victim,the other is the utilization behavior of the beneficiary.As far as the vulnerability of the victim is concerned,compared with the exhaustive enumeration of the German Civil Code,our country adopts the open enumeration mode.This is mainly due to the fact that the range of application of unconscionable rule in our country is larger than that of Germany.Enumeration model belongs to paranoia in legal methodology(Kasuistik).Paranoia itself is the meaning of enumeration,divided into exhaustive enumeration(taxative Kasuistik)and non-exhaustive enumeration(demonstaktive Kasuistk).Non-exhaustive enumeration is to enumerate some specific situations.Its range of application can be enlarged by analogy.Exhaustive enumeration is the enumeration of all cases and the exclusion of other cases,so it can not be applied by analogy in a concrete case,which is a case of negative reasoning.Therefore,German legislation example,due to the fact of exhaustive enumeration,can not be analogized in interpretation,so it exist quasi-profiteering act in the judiciary system.our country does not have this trouble.From the connotation of the weak statute,the state of distress in our country is equivalent to the compulsory state of Germany,and the lack of judgment ability in German law have significance for us.As far as inexperience and weak willpower is concerned,they can also be incorporated into the extension of the word "etc" in article151 of the civil code law.On the aspect of subjective element concerning“intentional use”,It mainly depends on whether the beneficiary exploit the unfavorable position of the victim or not.In other words to speak,The criterion in practice should meet two "knowledge",one is to know the weak situation of the victim,the other is to know the imbalance of objective payment.In terms of the relationship between the subjective element and the objective element,the two can strengthen each other,but they are indispensable.The so-called reinforcement relationship is to allow the judge to evaluate the constituent elements as a whole.When the degree of one element is stronger,the court can reduce the requirement of examination of the other element.Chapter 5 emphasizes the relationship between unconscionability and other legal institution.The fact composition of unconscionability clause is more flexible whether in subjective element or in objective element,but the author doesn't think that its characteristic belongs to the general clause,and should not be raised to a principle.The reason why the profiteering act is entangled with the public order and good custom clause is that the German legislation brings the profiteering act into the public order and good custom clause.The value basis of German profiteering is violation of public order and good custom.In order to mitigate the harsh legal effect,the German practice has also adopted the following means of relaxation: firstly,at the level of interpretation concerning subjective elements,strictly limit the scope of the subject of profiteering.Secondly,the effect of invalidation is limited to the rights of one party,who practice the act of profiteering.The obvious unfairness in our country is looser in effect and constitution than that in Germany,and should not be regarded as a special form of public order and good custom.In view of this,significant and extraordinary profiteering(what in Germany called quasi-profiteering)should not be traced back to public order.Although the beneficiary's standardization of conduct has not risen to public order and good custom,it violates the principle of good faith.The relationship between profiteering and good faith has existed since ancient times.The principle of good faith is a symbol of fairness and justice,which can not only be widely applied to the exercise of rights and the performance of obligations,but also promote and mediate the interests of the parties.It and good custom belong to the category of law ethics.This basic values accords to the development trend of unconscionability in comparative law.The principle of good faith can restore the state of property imbalance caused by the profiteering act.If the perpetrator has fault,the victim can claim damages from him.An original valid expression of intention through revocation become retroactive invalidation.Therefore,Only because of major defects(defects of meaning)related to the formation of meaning can be given by the law the power to render an expression of meaning retroactively ineffective.There are major misunderstandings,fraud and coercion as the reason of revocation in the Civil Code.Due to the expression of people,the relative people have a major misunderstanding of the meaning of the expression.On the contrary,fraud and coercion are caused by other people's reasons.Although the victim from unconscionability enters into the contract voluntarily,the victim's will is still infringed by the beneficiary,but the infringement has not reached the independent type of insufficiency of will,and the degree of non-freedom of will is lower than that of fraud and coercion.Although in the common law system,the unconscionable rule is the general rule to adjust the unfair clause.However,in view of the legislative tradition of our country,the both are separately provided in civil code.The standard clause can not be regarded as a special provision due to the intersection of composition for unconscionable act.The legal application of article 40 can not be excluded by the absence of subjective elements.Both standard clause and unconscionablity are the exception and breakthrough of the principle of formal fairness by the law pursuing substantive justice.If the specific terms of the contract violate both the unconscionable rule and the form clause,the parties may freely choose between the two kinds of relief means,to declare the standard clause invalid or to revoke the contract. |
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