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As The Obvious Unfairness Element Of The Principle Of Change Of Circumstance Of The Applicable Conditions

Posted on:2013-05-19Degree:MasterType:Thesis
Country:ChinaCandidate:L WangFull Text:PDF
GTID:2256330425982840Subject:Law
Abstract/Summary:PDF Full Text Request
The principle of the changed situation is an important principle in the contract law,its establishment and development through a lengthy process,now most countries have recognized this principle, our country also formal recognize it through the judicial interpretation. In daily life, the principle of the changed situation of accurately apply must have suitable conditions, only mastering the applicable condition, the judge can avoid expanding applicable scope, and limiting the discretion of the expansion.This paper is to study the obvious unfairness element of the principle of the change of circumstance of the applicable conditions, if it has other elements, does not have the obvious unfairness element,where you can’t apply the principle of the change of circumstance.Obvious unfairness element is core element of the principle of the change of circumstance of the applicable conditions,therefore, it is necessary to comprehensive study requirements and discuss it, by analysing the difference between the civil juristic act of the "obvious unfairness "and obvious unfairness element of the"obvious unfairness",and cases in practice,we hope to establish important position for the obvious unfairness element, but at present how to determine the obvious unfairness element,there didn’t reach consensus, which still needs to further strengthen the study and discussion.This paper, besides the introduction and conclusion, is divided into four chapters.The first chapter is a summary.This chapter presents to the concept of the change of circumstance the principle of the change of circumstance content, through the law study for the principle of the change of circumstance of the applicable condition, the obvious unfairness element is contained.Discussing the content and analysing the relation of the other elements,relationing the rationality of the existence of the the individual in this paper. The second chapter is summarized attitude about the obvious unfairness element in the legal documents.This chapter investigate three aspects of the law attitude, from continental law system country the and region international law to China’s legal documents,which some direct reference "obvious unfairness", the others need through reading to get conclusion included results. No matter how, the attitude about the obvious unfairness element from these legal documents is consistent, namely admit the obvious unfairness is one of the elements of the principle of the change of circumstance of the applicable condition.The third chapter is legal research about the obvious unfairness element of the principle of the change of circumstance of the applicable condition. This chapter will take the obvious unfairness element of the principle of the change of circumstance of the applicable condition of "obvious unfairness" and the civil juristic act of the "obvious unfairness" as a preliminary comparison, explain the obvious unfairness is suitable for different standard, cannot confuse each other.On the basis of the jurisprudence of the obvious unfairness element’s content,the author evaluates Jurists point of view,and puts forward his own view,which how to identify the obvious unfairness element.The fourth chapter is supporting the obvious unfairness element’s core position of the principle of the change of circumstance of the applicable condition through cases.This chapter analyses two different cases:one case not only consistents with other elements, but also includes the obvious unfairness element,which judgment of the case is right; the other case consistents with other elements, but do not meet the obvious unfairness element, the court makes the wrong decision. To prove highlight the importance of it, the author analyses personally, by taking the facts of the case, judging the case,analysing the case, using the standard methods of identifing the obvious unfairness element.
Keywords/Search Tags:the change of circumstance, obvious unfairness element, identificationstandard
PDF Full Text Request
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