Research On The System Of Intention Expressed Error

The theory of mistake emerged early with the rise of concensualism, from Roman transaction habit to its acceptance by German Law, the evolvement of mistake system has been a complicated process from strict formalism to a stage which freedom of will is emphasized, gradually to the autonomy of the will by German common law, since when the system was accepted by other civil law countries.The civil juristic act is always the focus of Chinese traditional civil law research while the declaration of will is the key component of legal behavior. As a result, a research towards declaration of will is of great value for legislation and amendment of civil law. However, with social development and the progress of political civilization, the relatively abstract and scattered original civil law cannot satisfy the increasing demand of judicial practice any more, which leads to the omission of the regulations of mistakes in declaration. In order to make up the flaws of the original civil law, so as to meet the need for judicial reform and to adapt to social development, this paper gives organization and legislative proposal to the reconstruction of mistake system.Due to the limitation of subjective and objective conditions, there are some mistakes in declaration of intention when people performs civil juristic act. Neglecting them could be against the principle of private autonomie. As a result, the mistake system was created to free people from constraint of the mistakes. Then the problem lies in the balance between private autonomie and transaction security, which means providing remedies to the actors who made mistakes as well as protecting the counterpart’s. Around the scope of legal remedy, researches about legal consequences of mistake in declaration of intention emerged and a set of legal adjustment mechanism is established in several countries. Although there are some theoretical and practical explorations in China, there are still controversies in theoretical field as well as flaws in legislation. Thus it is necessary to study on the theory of mistake and set rules which work for China.This paper studies on the theory of mistake research and its regulations by the two law systems in the method of comparison, and gives a specific discussion on the categorization and recognition of mistakes, which is the core problem of the theory. In addition, this paper enlarges the scope of application and gives a clear standard for reference with its specific rules. An attempt is made to explore the legal consequences, the reliance liability after cancelling the contract, and restrictions on the right of cancellation as well as alternation in the contract. At last, the paper gives a summary on the deficiency of current mistake system and its regulations in the draft of civil law in China. I will also list some constructive suggestions based on the legislative experience of other countries.