Font Size: a A A

On The Significant Misconception

Posted on:2008-07-02Degree:MasterType:Thesis
Country:ChinaCandidate:G X CuiFull Text:PDF
GTID:2166360215952145Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Through the systematic comparison research between international law and our domestic law, this article analyzes the mistake rules in foreign law and our domestic law. It suggests that the significant misconception rules in our domestic law should draw lessons on this account by inspecting the mistake rules such as the concept, the position, and the impact of mistake in contract. By discussing the significant misconception rules with relevant rules, such as fraud, obvious unfairness and contract interpretation rules and so on, this article intend to make the rules of significant misconception more specific in complex judicial practice on the basis of our domestic law system.The first part discusses the concept of the significant misconception. It definites the significant misconception through telling the differences between the mistake rules and the significant misconception rules. Mainly introduces the mistake rules in Germany law, including its kinds and effect to the legal act's effect. By comparing the mistake rules in foreign law to the significant misconception rules of our country, it suggests that our domestic law should draw lessons from foreign law. In this part, it discusses the kinds of the significant misconception too.The second part is the key component. It discusses the significant misconception's components. The necessary parts of the significant misconception are able to sum up for the following three aspects: firstly is the person who misunderstands. Misconception not only referring to the party, but also being able to include the relative person. Secondly, how to confirm whether a misconception is significant or not. When discussing how is "significant", the following two aspects should be considered, what caused the misconception and if the misconception has brought about or will bring about the consequence that the party's significant disadvantageous. Thirdly, subjective states of both parties make effect to the significant misconception. To be a the significant misconception, the subjective state being going to consider includes both parties. Ascertaining that by this subjective states of both parties also make the differences between the significant misconception rules and fraud rules become clear and definite.The third part carries out systematic research on the significant misconception under our domestic law background. Firstly, discusses the differences between the significant misconception and contract interpretation rules. This article thinks that both the significant misconception and contract interpretation rules are being used as relieving system, but they do have many differences. To confirm if a contract has been set up, we ought to apply contract interpretation rules to make a judgment, while only if the contract has been founded, it comes to that whether there is a significant misconception or not. Secondly, it distinguishes the significant misconception from fraud. Finally it distinguishes the significant misconception from obvious unfairness.On the ground of former part, the fourth part has suggested that how the significant misconception should be in the future in our domestic law. As the kind of the significant misconception is concerned, it should contain a part of misinformation. The choice changing or rescinding has brought forward the different idea to the contract, has thought that the court can judge the contract canceling the significant misconception directly under appropriate situation on besides, it promoted a problem with canceling right in this article. By the end of this article, it proposes that if the people who have the canceling right does not use his canceling right in time, the relative party should be entitled to have square right and even have the admitting right.This article adopts such a systematic research method aiming at two aspects at least. On one hand, it considers for our domestic legal system's coordination, on the other hand, in order to diminish the distance between putting abstract legal rules into various complicated law practice.
Keywords/Search Tags:Misconception
PDF Full Text Request
Related items