The Analysis On Unconscionability

The unconscionability is a special regulation of the civil legislation to protect one party from another in trade. The main controversy of unconscionability is the conflict between justice and freedom. How to regulate this provision reasonably and effectively have been disputing for so long in the civil law academics.This article contains four parts. The first part:The born, developing and changing of unconscionability. The second art:Independent existence value of unconscionability. The third part:The judging standards and constitutive requirement of unconscionabilty.The fourth part:A new method of the justification range of unconscionability.The author will first give a brief description of the historical origin of unconscionability. In this part, the author will not exhibit the conceptual change of this rule isolatedly, but explore the discipline between unconscionability and the historical economic background. The author list the specific legislation of unconscionability in our country, and try to analyze the judging standards and justification range of unconscionability.In the second part of this essay, the author will discuss the independent existence value of unconscionabilty. The author mainly hold out the consent theory and absorb the disowning theory, besides part of the concerning of the market trade. The unconscionablity of our country should be discussed and analysed under the regime of particular act as a whole.In the third part, the author will analyse the judging standard in detail combining the objective and subjective elements. How to affirm the unconscionability of the court would be core significance of this civil legislation. The author will center on the subjective and objective affirm of unconscionability to discuss the rule of our country and other countries. The author will use the systematische auslegung and literal rule to analyse how the strong square of trade to oppress the vulnerable party. And this party can create the premise of the next part of this article.Namely,the court should use the existing legislation of civil law combining the marketing theory to encourage competition, so as to regulate the unconscionabilty effectively and reasonably.The author will put out the core point of this essay. The regulation of court can be divided into two part, one is affirm and the other id the range. The author will discuss the range of regulation through a case on AI vs. CMSB, to demonstrate the problems of the application of unconscionability, and using some basic conception of economics of law to discuss the way of avoiding the problem. The new method of the author is to use the market competition to avoid the situation of unconscionabilty on the one hand and to make the court’s regulation more effective and customized, and not influenced the social total efficiency. If the court can using the new method to limit the application of unconscionabilty, it can in turn to promote the competition too. This would be what the author wish.