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Big Misunderstanding

Posted on:2013-05-31Degree:MasterType:Thesis
Country:ChinaCandidate:J W ZhouFull Text:PDF
Abstract/Summary:PDF Full Text Request
How can significant misconception be correctly “found out” out of a large numberof cases and how can its nature be correctly “determined”? When studying thesystem of serious misunderstanding, we shall not only research into some disputedissues of serious misunderstanding, but also find the obstacles in practical applicationof the serious misunderstanding. Through investigation of real cases and judgementdocuments, it can be found that in the legal practice of our country, the uncertainty ofthree problems, namely the affirmation of serious misunderstanding, the specificstandard used to investigate the serious misunderstanding, and the difference betweenthe serious misunderstanding system and other systems, are the main obstacles ofapplication of the serious misunderstanding. Our country’s provisions on the seriousmisunderstanding are too simple and also with many omissions, though the SupremePeople’s Court has made supplements by the relevant judicial interpretations. As aresult, a judge may easily have different understanding in legal practice and may hardto determine the basis for application in concrete practice, which will lead to animbalance between considering the intention of a representor and considering thesafety of transaction, even it will lead to different judgments in the same or similarcases. Therefore, we shall learn the experience of other countries or the relevantregions and adequately understand the basic theory and spirit of the relevant system ofserious misunderstanding in order to complete the civil law system of our country,close our country’s legislative loophole and unify the basis for application in judicialpractice to build a more comprehensive and clear system of civil law in our country.Chapter I points out the problems through research on specific judgments. At first, ituses the fact that two cases, which are very similar to each other, have differentjudgments, to explain the serious problems existing in the practical application of thesystem of serious misunderstanding. After that, it analyses the reason and solution ofthe problems of application, and the source of these problems is the affirmation ofserious misunderstanding. Chapter II is the major part of this article, and it mainly analyses the definition,constitutive requirements and investigation method for specific cases. Firstly, there isan essential distinction between “misunderstanding” and “mistake”, however,considering the factors including the continuity of the legal concept of “seriousmisunderstanding” and the language habit of our country, the words “seriousmisunderstanding” may still used on the basis of clarifying its definition andconstitutive requirements. Secondly, the method of affirmation mainly obeys thepurpose of the representor, objective standard, standard of result and subsidiarystandard. Although there is a similarity among some specific standards and themethod of expression of intention, this article still plans to draw attention of the lawcircle through research and generalization.Chapter III mainly analyses the differences between the serious misunderstandingsystem and other systems. Though this is a topic frequently discussed in the academiccircles, this article not only analyses the differences among these similar systems, butalso proposes that these differences can be provided by different laws and regulationsthrough legislation in order to prevent confusion among different systems of theparties involved in the cases and their lawyers. Besides, the method of affirmation hasdirective significance for the court to investigate the intention of a party who hasmisunderstanding and make a correct and unified judgment when applying the rulesof serious misunderstanding.On the basis of argument on the above three main problems, this article also providesthe author’s opinions on the issues of legal consequence, the owner of the right ofrescission and gross negligence of the representor, and gives some opinions onlegislation in connection with the above problems.
Keywords/Search Tags:significant misconception, mistake, determination of siginifcantmisconception, methods of investigation
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