Font Size: a A A

The Reform Of Significant Misunderstanding Mechanism

Posted on:2017-07-18Degree:MasterType:Thesis
Country:ChinaCandidate:H G ZhouFull Text:PDF
GTID:2336330488472521Subject:Civil and commercial law practice
Abstract/Summary:PDF Full Text Request
Legal act is an important means to achieve rights and obligations. Nowadays, as the social division of labor tends to be more elaborate and the trade be more developed, the legal act plays an irreplaceable role in realization of rights and obligations. The establishment of legal act always set up on the party's cogitation and expectation of the world, whether the parties can withdrawn the legal act that is based on the misunderstanding, and the two parties how to balance the contradiction between the private law autonomy and the transaction security. Actually,balancing the contradiction between the private law autonomy and the transaction security is the main line of this paper which is to set forth the reconstruction of the system of material mistake from the perspective of the interpretive theory and legislative theory. In a word, the entire paper is divided into six parts,The first part, lays the research direction to the paper, is to state the legislative and judicial confusion that occurs to the Chinese system of material mistake.The second part discusses the development trend of the system of material mistake. Chronologically, transaction security takes the dominant position in Rome law and Medieval law. Then, as concept of private law autonomy rises in the era of modern codification, the private law autonomy takes a dominant position. And then, in contemporary law, the formation of free market and economic globalization makes the transaction security become more and more important. Now, the provision of the system of material mistake In each country judiciary and international judiciary has been transformed to transaction security.The third part talks about the components of the system of material mistake: one is the mistake must really exists, and the other is the mistake must be serious enough. Standing on the judicial and legislative practice, the contemporary system of material mistake attach great importance to the value orientation of transaction security, which guide us to research the system of material mistake from the theoretical basis of the second part, the forth part shed light on the limitation to the contractor's withdrawal right, especially it emphasize that the contractor who has excessively serious mistake fails to have withdrawal right. The fifth part discusses about the legal consequences of the system of material mistake and the component of compensate for damages.The sixth part tells about the reconstruction of the system of material mistake. On the value orientation, the system of material mistake may tilt to transaction security to reach a balance between the private law autonomy and the transaction security. And then I am to give some suggestions on the reconstruction of the system of material mistake by the above theoretical basis. In concept, the material mistake can be replaced by the error, and then we can make an rational expanding interpretation to content of error. Moreover, we must make clear that the contractor who has excessively serious mistake fails to withdrawn the contract. As for the wrong legal consequences, negligence is not an element to define the liability for damages.
Keywords/Search Tags:legal acts, material mistake, error, transaction security, private law autonomy
PDF Full Text Request
Related items