Error Theory

Mistake is avoidless in life,and this is true in daily life as well as in legal existence. Civilly,mistake about declaration of will has its specific meanings,refering to the inconsistency between express and genuine will at heart. Thus,civil mistake is closely interconnected with declaration of will,through which the former is interconnected with legal act and the basic civil principle----autonomy of private law in the end. Thanks to the lofty status of the principle of autonomy of private law in civil law and the key role of the system about legal act in civil law system,we must scrutinize a variety of cases about declaration of will,especially all kinds of morbid ones,which include declarations of will arising from mistake,fraud or menace. If these legal acts out of morbid declarations of will are granted to complete force adeffect,the results are undoutedly in contravention of the principle of autonomy of the will. Therefor, none of the civil laws in all countries has fully legalized these legal acts,and formed a series of rules concerned,among which mistake has its particularity. The reason is that it is sufficient to protect the party of sufferer when fraud or menance occurs,whereas it is questionable whether to protect the genuine will of the representor or to protect the dependence of the opposite party and transaction safety in case of mistake.The answer to such a question must contain three hiberarchies as follow:1. why is the civil act on the basis of mistakes remediable? 2.what mistake is worth remedying? 3. how can such an imperfect civil act be remedied? There are differences and even serious controversies in the handling of the three aspects among the countries in civil law system. Thus, mistake, unlike fraud or menance, has not clear concept, perfect theoretical system or strict systematic arrangements. And it is especially true considering the poor research on this theme in China. This actuality impedes the role's full play of the system of mistake. So it is essential and significant to make a systematical research on this problem and deepen the understanding to such a system in order to advance the sublimation of thetheory and its instructional effect on the practices. The author has no extravagant hopes to get over all the theoretic difficulties just through a thesis, but want to have a try to resolve this problem. The attempt have the following steps on the whole, which are also several pivotal parts in this paper.Firstly, basic problems concerning mistakes are introduced, which is underlain by the subsequent discussion in this paper.Secondly, the value orientations about the system of mistakes are analyzed, and thus the base for the discussion is formed.Thirdly, the specific applications to the rules of mistakes are summed up in order to put up the framework of the system of mistakes.At last, the author gives a review on the existing legislation concerned, and makes some corresponding suggestions, which is the ultimate objective of this paper.Upon introduction, the author clarifies the difference between civil mistake and common mistake, and points out that mistake in civil law is not a value judgement, but a judgement of reality. Therefore, special method should be taken to settle the problem of mistake civilly. Such a method is also a clue of text part from beginning to end, which is defined firstly for it's somewhat obscure.Section one, titled as 'the Fundamental Problems', has relatively numerous and jumbled content including several indispensable problems in case of mistakes of declaration of will. To begin with, the author difines the context of discussion, excluding the mistakes system of Anglo-American law system. In so doing, the author don't want to slack off just by material handling. The reason is that there are substantive differences in the areas such as concrete systems, support arrangements concerned and legislative ideas between the civil law system and Anglo-American law system. We must base ourself upon the situation of our country when researching and borrowing ideas from other countries' legal systems. Simple rote can only conbine mechanically two mutual independent, unconnected things, and the practical result of so doing would be in confusion on space-time. Next,the author introduces the controversy concerning mitakes system between the autonomy of the will and the principle of expression, demonstrates the necessity ot the system of mistakes philosophically, which also forms a base for subsequent discussion. Lastly, some familiar types of mistakes are introduced in the light of traditional clew of civil law system in order to give a full expression on that. Certainly, this introduction may be superficial, but it will be supplemented.Section two involves the value analysis on mistakes system. The dispute between individual freedom and transaction safety has become long-lasting subject in civil law recently, which has been exemplified by mistakes system. In this part, the author will discuss the dispute and search after the extent of the freedom of will and the due scope of dependence of the opposite party in the case of ocurrence of mistakes.Section three relates to the concrete appliance of the rules of mistakes practically. Constitutive requirements of mistake which is remediable are firstly analyzed item by item, and the problem that which type of mistakes can be remedied is also be answered. Secondly,a series of problems relating how to remedy a mistake, for example, the subjective,method , term limit of exertion, the legal effect after remedying such as restitution of property and compensation for loss, are discussed. Lastly, some special problems concerned are discussed, too.Last section of this paper, is titled as 'review on the existing law of our country and legislative suggestion'. These review and suggestion are natural and reasonable consequence of all the discussion above. The author firstly discuss the law term of 'substantive misapprehension', then review the provisions about the legal requirements of remedies for mistakes legislatively, as well as the provisions about the right of rescission and the right of modification, all of which are guided by the values given by the second section of this paper and contrasted with the third section. Just because there are detailed discussion and sufficient arguments above, subsequent suggestions are natural and reasonable results. Thus, this paper has no otherwise section about conclusion.