Legislative Construction Of Silence As Declaration Of Intention

Declaration of intention has two forms, one is explicit declaration and the other is implied declaration.Implied declaration has been divided into action and inaction.Inaction has the same meaning with silence. Silence means that it doesn’t have any symbols.any languages and any behaviors to declare intention. In the field of private law, some civil subject sends certain declaration of intention to the other,but doesn’t get any reply from him or her. Under these circumstances, you need to determine whether silence has legal affection to make civil legal relation established.At present, judicial interpretation of "General Principles of the Civil Law of the People’s Republic of China" stipulates that silence can be expressed as declaration intention in two conditions:agreements of parties and provisions of law. Howeverduring judicial practice, sometimes judges don’t decidewhether silence can be declaration of intention in the light of agreements of parties and provisions of law,but according to the principle of private autonomy and the principle of good faith.Although the judge’s discretion has broadened the scope of the silence as declaration of intention, the legislation doesn’t require the silence tobe applied in such cases. Therefore, in order to explore whether judges can rule silence as declaration of intention on the principle of private autonomy and the principle of good faith, the article have been divided into three parts which analyze legal theoriesjudicial cases and foreign-related system to find out the way of legislative construction of silence as declaration of intention.The first part introduces silence as declaration of intention and its specific classification.As mentioned above, our law rules that silence can be declaration of intention in both cases of agreements of parties and provisions of law. Then silence as declaration of intention can be separated into the positive and the negative. The former covers consent, ratification, acceptance, commitment, purchase, withdraw and so on. The latter contains refusing ratification or non-ratification. In this article, silence as positive declaration of intention can be divided into three types, and they are silence as acceptance, silence in agency and other kinds of silence. As to silence as negative declaration of intention, its legal affection always shows no difference with silence which doesn’t construct the declaration of intention.Both of them might not have any influence on civil law relation. Thus, this article won’t study it deeply.The second part introduces the interpretation and the legislative technique of silence as declaration of intention The principles of interpretation are expressed in three ways:principle of will, indication theory andeclecticism. Principle of will embodies the principle of private autonomy, but indication theory reflects the principle of reliance protection. Both of them play an important role in private law and the interpretation of silence as declaration of intention. Besides, it is so significant that they are bases and orientation of values for legislative construction of silence as declaration of intention, which can fully solve the existing problems in judicial practices, and protect the safety and efficiency of the transaction. In addition, this section also describes the legal fiction and the presumption of law. In the field of civil and commercial law, most of provisions give the legal affection of declaration of intention to silence by the legal fiction which inevitably takes some restrictive interpretation to silence. It means who is silent cannot advocate the withdrawal of legal fiction for self-misunderstanding. This mandatory requirement excludes the possibility of private autonomy. However, the presumption of law plays a different role with the legal fiction. It also could be used to the legislative construction of silence as declaration of intention. Therefore, in advance, the significant thing is to know the conception, characteristics and differences between the legal fiction and the legal presumption.The third part introduces the legislative construction of silence as declaration of intention. The positive declaration of intention has three types:silence as acceptance, silence in agency and other kinds of silence. For the first type, compared with foreign laws and analyzed judicial cases, this article suggests that the legislation should give a permission to judges who could determine whether silence can be acceptance in accordance with the principle of private autonomy.For the second one,"General Principles of the Civil Law of the People’s Republic of China" in section663situations of paragraph1is applied to three state of affairs:complementary reasons for agency by estoppels, ratification of the legal fiction, or both are applicable. Comparing with foreign laws and analyzing judicial cases, this article takes agency by tolerance and ratification of the legal fiction as two construction of legal affection for "General Principles of the Civil Law of the People’s Republic of China" in section663situations of paragraph1. For the third, summarized several kinds of cases about other silence as declaration of intention, this article finds out that judges can base on the principle of private autonomy to recognize silence as declaration of intention, which you can’t get any provisions from the laws. Thus, to solve this problem, it’s best to be accepted by legislation. And for some special judicial cases, adopting a legal presumption to establish will helpful to expand the scope of silence as declaration of intention.