The Study On The Significant Misconception System | Posted on:2009-03-10 | Degree:Master | Type:Thesis | Country:China | Candidate:A S Xu | Full Text:PDF | GTID:2166360245981034 | Subject:Civil and Commercial Law | Abstract/Summary: | PDF Full Text Request | Autonomony of Private law is practised through legal acts, which takes intention expression as an indispensable constituent element. Intention expression is composed of the internal meaning and external expression. There will be the inconsistencies between internal meaning and the external expression sometimes. There is one kind of error in the inconsistencies of intention expression that caused by ignorance of the expresser. Our General Principles of Civil Law and Contract Law regards it as "significant misconception".In practice, "significant misconception " sparks a lot of controversy from the concept and constitutive elements to leagal effects.Article 71 of "the general civil law suggestions". The definition of its concept has below problems, it breaks away from the special legal interpretation of "misunderstanding", in contrast, it has already entered into the legislative field. As far as problems of constitutive elements are concerned, the significant misconception system lacks standard terms and set up "the standard for larger loss" inappropriately.Article 61 of General Principles of Civil Law and the article 58 of Contract Law attribute the revocation of the legal effect caused by significant misconception to contracting fault liability. This leads to the lack of trust interests for the sake of the protection for relative person. It is just as well to say that the significant misconception system favors the intention freedom of the expresser excesively in terms of the balance between the intention freedom and the trust interests of the relative. it is a system beneficial to the expresser.The paper did not mean to cover all problems in the field of significant misconception system on the contrary, it only performed some necessary disscusions about some problems triggerring the serious controversy. It attach much attetion on the use of the method of Legal hermeneutics in terms of research method. There are a lot of case analysis contained in the paper.
| Keywords/Search Tags: | significant misconception, significant misconception system, error, constitutive elements, Civil law general rule | PDF Full Text Request | Related items |
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