The Legislation Orientation And Legislation Design Of Undue Influence

Undue influence evolves from the remedying parochialism of traditional duress in the equity court. It indicates that the party urged the other party to sign the contract by imposing indirect pressure and induce of undue influence. It doesn't adopt method of direct force but indirect method of intelligence, psychological and morality ordinarily. It prescribes particularly in contract of the U.K. and the U.S. They are dissimilar certainly. It represents mainly in classify of undue influence and led to have difference in affirmative way and the burden of persuasion. Now the law and scholar acceptant class is actual pressure and presumption of undue influence in the U.K. It base on identity of the party of inflicting undue influence and legal procedure. Actual undue influence is that the party imposes undue influence on the other party practically. The party doesn't have confidential relationships with the other party, can but the claimed party of undue influence provides proof to court. It proves that it has suffered undue influence and accordingly requests to withdraw contract. Presumption of undue influence is that owing to special fiduciary relationship of the two parties, and the court assume the party that is in inferior position or believe in the other party suffering undue influence from the other party. The senate of the U.K. class presumption of undue influence in two variety. The one is legally certain produced presumption of undue influence. The second is half presumption of undue influence. Compared certain presumption of undue influence with half presumption of undue influence, the relation of the former in two parties is rather tight and the latter's is rather alienative. The court can presume when the sufferer of undue influence prove that they believe in the other party all along. In the U.S., the court classifies the case of undue influence two sorts in practice. The one is undue influence of utilizing ascendancy, the other is undue influence of utilizing the station of credited. The court of the Unite State adopts impersonal way to cognize undue influence. It requires the party suffering undue influence provide correlative proof and come down to four aspect as follow. Firstly ,it rest with whether the party enduring influence affected easily in mentality ,psychology and health station; secondly, it rest with whether the possibility of influence exist; thirdly, It rest with whether offer fact that indicate employed influence; finally, It rest with whether content of contract have abnormal instance. If the above-mentioned can prove, it also can prove abecedarian the existence of undue influence. So above say, whether in the U.K. or in the U.S., categories of undue influence emphasize confidential relationships of the two parties. The English scholar P.S.Atiyah consider that many factor affect the development of contract. There are two factors that affect contract more than others. They are moral factor and economical factor. The value of contract isn't divorce from the two factors and then contract represent as justice of Contract in acquired value of moral facet and asmaintenance of exchanging secure in economical facet. Justice of contract embody as three pieces of principle, namely principle of contractual freedom, principle of contractual justness and principle of good faith. The first two items are the two supports of the Justice of Contract and the principle of good faith ensure freedom and justice to come to avenue of justice of contract. Contractual freedom is that the party has freedom of concluding contract and ensuring contractual content. It is as follow. (1) Freedom of conclude contract; (2) Freedom of choosing the other party; (3) Freedom of choosing contractual content; (4) Freedom of altering and rescinding contract; (5) Freedom of choosing contractual mode. Some scholar consider that it include freedom of breaching of faith and judgment. In the forepart of Capitalism, freedom of contract embodies and come to two values—justice of contract and exchanging security, that contract pursue. Follow with appearance of the Monopolism, the principle of freedom of contract err from the value of justice of contract. Justice of contract demands that it set up ideal relation between the parties, between the party and society or between the party and the others. The demand of justice of contract depict as justness of contract. This is the first limit to the principle of freedom of contract, including two sides, as follow. The first is that the society request to contract, such as appearance of coercive contract. The second is requirement of contractual relation of the parties, including equality of status of the parties, right and obligation. That is the principle of justice. The principle of justness is the lowest limit to thefreedom of contract. Many cases are outside in real-life. Here, the principle of good faith regard as a elastic item to remedy it and realize contractual justness. The intention of setting up undue influence is just about to recruit limitation of the principle of contractual justness and implement justice of contract. At the same time, we ought to know that it impact on the exchanging security. Certainly, the impact is limited and narrow, and we can adopt correspond measure to reduce the effect. In summary, undue influence according to the two values of contract on request. The side impacted by undue influence has independent right of concluding contract, and has choosing freely right of concluding contract. Because of the spirit or morality pressure that the opposing party put, the will of the party appear some deflection and conclude the contract that can't do in freely state at any time. The deflection is outcome that other intervene. Undue influence ascribes unfree expressing in nature. Neverthless, there are distinct difference between other matter that impact on efficacity of contract in our country's contract, such as uncon-scinability, fraud, duress and exploition of One's Unfavorable Position and it is availably complementarity. Our country is at the period of developing social market economy. There are many undue influences in our country indeed. If we don't rule it we couldn't help weak side in the period of exchanging and could disturb exchanging order. So the author considers that the undue influence regime should be set up in our draft civil code. Considering...