The Cognizance Of Serious Misunderstanding And Its Theoretical Research

The major misunderstandingsystem is based on the principle of autonomy of civil law and the principle of good faith.It plays a significant role in balancing the autonomy of meaning,protecting the trust interests and maintaining transaction security.The parties often find themselves inconsistent in the performance of the contract,so the number of cases applying for change and cancellation of the established contract for the reasons of major misunderstanding has been continuous in recent years.The legislation of major misunderstanding system in China has some problems,such as unclear definition,simple constitutive elements,easy confusion of similar legal system,which make it difficult to effectively and clearly judge cases in judicial practice,and resulting in different trial criteria and different results.In addition,the academia has a certain degree of controversy about the concept,connotation and determination of major misunderstanding.Based on the above situation,the study of civil acts of major misunderstanding has the dual significance of theory and practice.This paper discusses the major misunderstanding system from two aspects of theory and practice,and puts forward suggestions on perfecting the major misunderstanding system in China.The first chapter is mainly combined with some scholars' views and the specific provisions of current legislation,so as to have a basic analysis on the characteristics and meaning of major misunderstanding system in China.From the provisions of the major misunderstanding system in our current law,to comprehensively expound the major misunderstanding system of our country,mainly from the General Principles of the Civil Law and the Contract Law;Because the existence of a system always has a certain legal basis and historical origin,the first and second section of the first chapter briefly expounds its legal basis and historical origin.Through this part of the discussion we will have a broader understanding of the system of major misunderstanding system.The first section of the second chapter has talked about the comparison of major misunderstanding of China with the error concept in foreign legislation,and analyzed the relationship between the major misunderstanding system and the error system,and concludes that the connotation of" major misunderstanding" in Chinese legislation is basically equal to the connotation of" error" in the foreign legislation.This chapter mainly compares the major misunderstanding of China with the indication of an error of German law.The main reason for choosing German civil code is that China and Germany are the same law countries,and China has chosen and transplanted the German law model since the legal reform began;And the concept,basic principles,system and theoretical system from the German civil law have been integrated into our society.The second chapter will make the comparison of the major misunderstanding of China with the indication of an error of German law,so that its basic principle and basic concept of the system has generality and comparability,and by this way it will be more conducive to in-depth study and reference.The third chapter is the identification of major misunderstanding,which is also the main chapter of this paper,the identification of major misunderstanding is directly related to the judgment of judicial practice.This chapter attempts to standardize and improve the practice accreditation of major misunderstanding from the general principles of major misunderstanding,the definition of major misunderstanding standard,the constituent elements of major misunderstanding,the difference between major misunderstanding and related concepts.In order to accurately identify the cases of major misunderstanding in practice,the method mainly follows:the purpose,objective standards,results standards,auxiliary standards.Although there are some specific standards and methods of interpretation that exist some similarities,but this paper still hopes to induce the attention of law theorists and the judiciary through another study.The fourth and fifth chapters are in a whole.The first section of the fourth chapter uses the specific cases of judicial practice to illustrate the problems in judicial practice,and the second section analyzes the reasons of the judicial dilemma of the cases;And combining with the first three parts of the theoretical exploration of major misunderstanding,finally I will put forward the proposal to improve the system of misunderstanding in the fifth chapter.This paper mainly adopts the method of legal interpretation,comparative study,historical research and other methods.First,adopting the method of legal interpretation to explain the provisions of the major misunderstanding system in our current legislation;Using historical research method to grasp the origin of the major misunderstanding system of the existing provisions;Using empirical analysis to understand what major misunderstanding is and how to apply the major misunderstanding system and existing judicial practice in judicial practice;Using the comparative study method to compare the major misunderstanding system of China and the error system of Germany,so as to perfect our system by referring to foreign legislative provisions.The logical thinking of this article is to grasp the essence of the system of major misunderstanding,its characteristics and the system of major misunderstanding,next combining with the specific case analysis in judicial practice,to find out and study the problems of judicial practice,then by using the comparative study method to explore the benefits of the error system of German stipulation for the China's major misunderstanding system.Finally,finding out the conflict and contradiction between legislation and judicature,and reflecting on the existing major misunderstanding system of our country,the proposal will be shown to perfect the system of major misunderstanding in China that is expected to contribute to the judicial practice of our country.