Research On Effect Of Contract Signed Under Cheat Or Duress

Autonomy of private law is the core of private law, also, it gives person a possibility to be protected by law so as we can decide everything of all by ourselves. This is the superiority of autonomy of private law but in fact, the factor that may affect people’s intent-indication often occurs, such as cheat and duress. Nowadays China law has regulations focus on the cheat and duress between the contract party, while how to deal with the cheat and duress resulted from the third party is still unformulated by law. This situation not only affect the completeness of our law system, but also a obstacle of justice. So I’d like to analyze the regulations of different law system and their history resources headed from intent-indication theory, through method of historical analysis, comparative analysis, ethical analysis and so on. Based on the analyses, I will give a solution which compares our national conditions and has legal basis——endow a right of revocation to the representor. I hope the thesis can make a little contribution to our theory research and Judicial Practice about regulation of the contract which has flaw in intent indication.This thesis include 4 parts around the effect of contract which has cheat and duress from the third party:The first part is a summarize of intent indication flaw theory. Before analyze the reasons of intention indication flaw deeply, we should do a intensive research about the oriental and elements of intent indication because cheat and duress is a kind of intent indication flaw. Firstly, I only introduce some intent indication theory related to my thesis because this theory is really too complex. Traditional opinion deems that intent indication is a single structure——intent is a modification of indication, in fact, it’s just a indication. This theory intends to protect the third party’s interest while the new theory hold a opposite view. They deems the intent indication is made up with intent from the heart and indication, neither can do without another. I approve the new opinion intent is the core of autonomy of private law, only when we consider indication as important as intent, can we abide by the nature of civil law, otherwise we may get in a mistake of objectivism. Then I discuss flaw of intent indication, the reasons it occurs include:one comes from the presenter himself, contains intention and negligence, namely Intention Misrepresentation; the other one comes from a third party, namely Intention Reluctance. The former covers about Real Reservation False Intent Expression Misrepresentation and so forth, the latter contains cheat and duress.As we all know:Wise men learn by other men’s mistakes; fools by their own. At first, the second chapter sort out clauses focus on third party’s cheat and duress from all over the world by a study of comparative law and then open up a discussion on different law model by historical analysis. Firstly, I pay attention to Chinese law: as to a contract signed under cheat and duress from either party, it will be invalid if it do harm to public interest, if not it will be revocable. This is a regulation between singer of contract, it do not involve a situation that how to deal with a cheat or duress comes from a third party. The Interpretation of the Guarantee Law make a breakthrough on the issue, but it is at a loss what to do with the case out of area of guarantee. Speaking of theory study, Mr.Huixing, Liang and Mr. Guodong, Xu do some research on this issue separately. Mr. Liang holds that:when the cheat comes from a third party, if the civil act has no counterpart, it can be revocable freely, while if it has a counterpart, it should be revocable on condition that the counterpart knows the defect of intent indication; as to duress from a third party, the victim can revoke his intent indication unconditionally. The Green Civil Code Draft of Mr. Xu gives a more comprehensive protect:joint liability, namely if the counterpart knows the cheat or duress, he must responsible for the illegal act as the infringer. The second section focus on two law model about third party’s cheat and duress:the united schema represented by International commercial contract and distinguish schema represented by Germany Law and France Law. Based on this, the third section statement my own opinion about this issue, I am approve of the united schema for the follow reasons:on one hand, the distinguish schema oriented from Rome Law, also it serves the purpose of safeguarding the order of the country in a world full of war. Now the world has changed a lot, the law should change, too. On the other hand, As for the criticism of united schema’s commercial law trend, it can be solved by law explanation.From point of view of contract’s effect, Caparter three do a intensive researsh about diffirent kind of legislative mode, namely Static security protection and dynamic security protection. Based on Absolutely Static security protection, the scholar deems that a contract should have no force because of the defect of intent indication so no party should undertake responsibility. While Relatively Static security protection holds that this kind of contract should be revocable. I agree with the later point of view:fistly, negative comments of the contract is not a punishment of the infringer, whereas this may doharm to innocent person. What’s more, without the victim’s prosecution, the law will make no sense. This siuation is benesth law’s pride. Lastly, grant the right of deciding contract’s force to the victim must be a wise choice because they may make a best decision as far as possible.The fourth chapter raise a solution for the contract signed under cheat and duress. In my opinion, we can give the victim a right of revocation with a premise of the third party’s right to know the cheat or duress. Speaking of exercise style, the right to revoke can be exercised either by law or by notice, also with a reason, in a express way.