A Study On Umgehungsgesch(?)ft

Taking retrospective viewing on historical origin and contemporary theories as a starting point, this thesis introduces typical types and models of Umgehungsgeschaft, the controversies over the issue of separatization and categorization of Umgehungsgeschaft, and the validity of Umgehungsgeschaft by a foot-standing point on confrontations between private autonomy and state regulation. An effort is put in highlighting the genuine implication and jurisprudential significance of this very institution known as Umgehungsgeschaft. An examination is also given on Null and Void Juristic Act in the form of expositions of inefficiency and misunderstandings in legislative works and the weakness in theretical scholarship in this regard. A thorough and outright survey over matters including binding cases and doctrines, home and abroad, is but a necessity for a guidance adopted in judicial practice.This article consists of three parts: introductory remarks, main body of texts and ending remarks. In introductory remarks the author points out an unpleasantly astonishing observations even the significance of Umgehungsgeschaft has already been recognized by legal practioners it still remains as an unnoticed legal institution within academia, which in turn fail to live up to expectations from legal practicing. It is time for academia to put more efforts in digging into this very institution in particular, and in contemplating on Jurisprudential Methodology in respect of implementation of law in general. We should do more on borrowing from scholarships of Germany and Taiwan to come in line with the social changes and meet the needs of them. Main body comprises four parts.In Chapter One, origin and evolution of Umgehungsgeschaft, doctrinal controversies over it, and typical modular and categorization are mainly introduced. Umgehungsgeschaft is a legal parlance for describing a definition that actors using private autonomy and freedom of contract to avoid mandatory rules of law. Umgehungsgeschaft is an old trick played and still plaguing legal profession. A number of schools and doctrines on essence and solutions of Umgehungsgeschafthave been developing in countries with civil law traditions, in which there are heated controversies over issues like, on which side one shall take in terms of whether separatization and categorization of Umgehungsgeschaft shall be undertaken.In the second chapter an examination on heated controversies over the categorization and seperatization of Umgehungsgeschaft. Scholars differ in this point. In the list are Theory of Juristic Act, Theory of Legal Interpretationism, Theory of Lap Bridge, and Theory of Separate Categorization. A conclusion is reached with merits and demerits analysis and comparison, and with a suggestive order of solutions based on all these aforesaid theories. This article lay its efforts on pointing out the jurisprudential methodological significance on the adoption over the two mutually alternative models of thinking: separatization over or abstract generalization of this very phenomenon.Chapter Three analyses validity of Umgehungsgeschaft with deliberation, after which a point is suggested that in the contexts as to confrontations between private autonomy and state regulation, the validity of Umgehungsgeschaft is reached from more and more diversified origins. Law sets exception of rules for the sake of responding to changes of society* Law grants or denies legality to some certain methods as to deviating from rules of law with a clear delineation in terms of validity. Another focus is put on the relations between intent/motive of, objective of, and validity of Umgehungsgeschaft.In the last sector of this chapter, the author also delves into the separate legal nature of Guaranteed Contract by Transference of Title when it contains intended validity and differs it from that of Umgehungsgeschaft.Chapter Four is devoted to a theoretical critique on Null and Void Juristic Act. With a focus on practitioners' dealing with and the trends of Umgehungsgeschaft, the author reiterates the fundamental characteristics of the very institution is narrowly in respect of a legal implementation issue. In the end of paper, a calling for the establishing a multi-centered End-Opening Order is brought up. An establishment contributing to a more perfect system on appraisal of legal validity and effects is a suggested ultimate solution to issues like avoidance of law.