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The Research Of The Major Misunderstanding Of Civil Conduct Recognition

Posted on:2013-08-09Degree:MasterType:Thesis
Country:ChinaCandidate:J MengFull Text:PDF
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This thesis systematic study of the identified major misunderstanding of civil behavior, and it mainly includes five parts, the first part is the identification of a gross misunderstanding of civil conduct, the second part is the conduct recognized standard of the gross misunderstanding, the three part explore the types of major misunderstanding, the fourth part research the elements of the major misunderstanding of civil behavior, and the fifth part study the other issues related to identified on a significant misunderstanding of civil conduct.The first part of the papers start from the concept and characteristics of the gross misunderstanding,and then talk about the definition and effectiveness of a misunderstanding, and further theoretical and practical significance of a major misunderstanding. In civil law, a major misunderstanding is an inner meaning wrong, which is caused ideographic own reasons, and because of the significant misunderstanding the people cannot achieve the purpose of the contract. While our civil law the "major misunderstanding" have the same meaning of the "content error" as the civil law. The same time, according to the provisions of the law in China, a major misunderstanding of civil conduct for revocation of civil behavior can be changed, so for a significant misunderstanding of civil behavior also applies to there vocation of the adjustment rules of civil behavior.In the second part, I put forward the standard of the significant misunderstanding according to foreign law and China scholars view, that is, from the combination of subjective and objective identified. Subjectively, we should still persist our civil law views71subjective criteria, that is, when the ideographic people in the same circumstances, if you do not happen misunderstanding with each other, you will not for civil conduct, this condition constitutes a major misunderstanding. Otherwise, even if the misunderstanding is a major objective, but ideographic people know the existence of misunderstanding will continue with each other for civil conduct, we can not be identified as a major misunderstanding. Objectively speaking, under the premise of respect for the the ideographic people contracting purposes, the limited breakthrough the provisions of section71,at the same time abandon the standard of cause significant losses ".In the third part of the thesis, I have a conducted a detailed study for a major type of misunderstanding. From the connotation of a major misunderstanding on the analysis, a significant misunderstanding of our country can only include the subject matter of misunderstanding, misunderstandings and misconceptions about the behavior of the nature of parties, but not indicate an error and send the wrong meaning. The one hand, major misunderstanding of China’s law is the same as Germany; the other hand, our legal status of a major misunderstanding of the provisions can be summarized into three types, which are the misunderstanding of the behavior, the misunderstanding of the other party,and the misunderstanding of the subject matter, including on the subject of the kinds of goods, quality, size and number of misunderstandings, not including the parties caused by wrong choice of symbols indicates an error and mean error in the communication process send the wrong.The fourth part of the paper start from the elements of the major misunderstandings, specifically discussed what kind of behavior can be considered to be significant misunderstanding of civil behavior. If you want a behavior to a significant misunderstanding, you must meet three conditions:First, it must be a misunderstanding ideographic expressed as the mean. This requires a major misunderstanding must be the ideographic misunderstanding intention. Be possible only if there is misunderstanding there is a major misunderstanding, which is the former kind; second, ideographic misunderstanding must be significant. How to understand the "significant", it is generally believed that misunderstanding is importantly to a legal act in trading;thirdly, the ideographic misunderstanding is not due to its gross negligence misunderstanding. When a misunderstanding is significant, but it is caused due to gross negligence of the ideographic, this misconception should not be identified as a major misunderstanding.The fifth part of the paper talked about the other issues related to the identified significant misunderstanding of civil behavior, mainly from finds that the request of the right and the People’s Court Interpretation. First of all, I believe that is to protect the legitimate interests of the ideographic error due to a major misunderstanding designed, and its relief, so China should learn from the usual practice of other civil law countries, the right to revoke the grant ideographic. Second, the graphic even request the court to revoke the act, but shall have to bear the negligence gave caused a greater loss, so the ideographic error is extremely unfavorable. The author believes that the people’s court or an arbitration institution shall take the appropriate responsibility of informed, that is, when the the ideographic error request withdrawal of a major misunderstanding of civil behavior, people’s court shall inform the ideographic error if the revocation of the major misunderstanding of civil behavior can also cause Contracting negligence, compensation for the loss of the opposite party.
Keywords/Search Tags:Major misunderstanding, Error, Identification, Meaning
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