On The Establishment Of The Legal Acts

The concept of juristic act, founded by the jurispmdent of German, is the most important and basic concept in dvil law system. It is praised highly and said to be the " proudest achievement" in civil law system. The German Civil Code(BGB) first made it as an institution in 1896. The Japanese Civil code, Civil Code of Republic of China, Korea civil code also followed this legislation practice. Owing to the abstruseness of the juristic act theory, this thesis chooses.one side of the theory—the establishment of juristic act--as research subject. Through the efforts made in this thesis, I hope I could make some contn'bution to the legislation and theoretical research conceming juristic actThis thesis is divided into four parts:First part: The division between the establishment and validity of juristic act. First, this part describes the historical development of the division between the establishment and validity of juristic act; Second, it introduces the attitudes of the dvil law scholars toward the division between the establishment and validity of juristic act, analyzes the opinion which oppose to this division, and puts forward the justness and significance of the division between the establishment and validity of juristic act.; Last, it probes into the question that whether the establishment of juristic act is a fact judgment by three levels (legislative level,judicatory level and philosophical level) and concludes that the establishment of juristic act is entirely a value judgment.econd part: This part discusses mainly the relation between the declaration of intention and the juristic act, while it is the core issue of the establishment of juristic act. The mainstream of the civil law scholars think that the declaration of intention and the juristic act are not the same thing, the former is just a core dement of the latter; Some of the scholars also take the point of view that the declaration of intention is not the essential dement of juristic act. Are these two standpoints correct? In order to solve these queries, four questions should be discussed here. Firtst, this article discusses the real juristic act. After tracing back to the historical development of the real juristic act and the reasons why the real juristic act is admitted by contemporary laws, this article analyzes the necessity of the real juristic act from value level in modem society, and comes to the conclusion that the purpose set up in the real juristic by the lawmaker can not be realized and it would restrict the space of private autonomy; Second, this article expound the formal juristic act. The reason why contemporary laws require certain juristic act possess specific form is that the legislators intends to realize certain purpose by virtue of form. The purpose of the formal requirement of juristic act is to protect the interest of one party, to maintain the claim of third party, or to maintain certain public interest. By reviewing the three purposes of the formal requirement of juristic act, this article concludes: the purpose of protecting the interest of one party and maintaining the claim of third party is unjustified, because it would be detrimental to the autonomy of private law; The formal requirement of juristic act does have help in protecting the pubic interest, so it should be maintained. But it should be the requirement of validity of juristic act. Third, this article discusses the "contract implied in fact" theory. Some scholars think that if the "contract implied in fact" theory is admitted, it would lead to the result that declaration of intention is not the essential element of juristic act. By probing deeply into the "contract implied in fact" theory, this text considers that the acceptation of "contract implied in fact" theory would only shorten the space of juristic act, but would not separate the declaration of intention from juristic act. Last, this article elaborates the "intentional realization". There are some disputes on the nature of "intentional realization". Some scholars consider it as declaration of intention in nature; Others hold the opposite standpoint. Based on the review of the argument held by the two sides, I think the former is more cogent than the latter. The conclusion of this part is: Declaration of intention has the same nature as juristic act.Third part: The establishing conditions of juristic act. This part sets forth the establishing conditions of juristic act. Through the analysis of the viewpoint of mainstream, this article puts forward the following standpoint: The establishing conditions of juristic act include party and declaration of intention; The division between common establishing conditions and special establishing conditions should be thrown off.Fourth part: This part deals with the law conceming the establishment of juristic act. By combing the law concerning the division between the establishment and validity of juristic act, the law concerning the real juristic act and the law conceming the formal juristic act, this article puts forward some legislative suggestions.