The Structure Of The Silent Fraud In The Contract Law

This thesis mainly discusses issues related to the silent fraud in the contract law of our country. Contrary to the positive fraud, the silent fraud is a civil fraud, which is composed of the omission or the silent way, and is more expressed in the civil contracts. The two legal systems have recognized that the silence can lead to fraud, as for the particular situation of the silence is still a matter of opinion, which is a great controversy. Continental law countries adopt the doctrine of the components, and set three components for the silent fraud. Common law countries limit the silent fraud to four special types of contracts. In our country, there are few concerns about whether silence constitutes silent fraud, the judgment of the judicial practice about the silent fraud can be counted by figures, so this question should be paid more attention. In addition to the introduction, the body part of the thesis is divided into four parts.The first part lists the two typical cases, thus lead to the problem discussed in this paper. From the judgment affirmed on the silent fraud made by judiciary authorities, think about the significance of the obligation to disclose to the silent fraud, as well as the components. Through the judgment the court denied the silent fraud, consider the circumstances under which exist the obligation to disclose, and how to perform the obligation.The second part analyses the premise of the silent fraud, based on the significance of the obligation to disclose. The existence of the obligation is an important and indispensable part to study whether silence constitutes silent fraud. On the basis of the understanding of the problems listed in academic circles at home and abroad, the theoretical basis of the obligation is summarized as the principle of good faith, fair and autonomy principle, the rule of law, the provisions of the contract, the requirement of the trade practices and the principle of good faith is identified as the source of the obligation to disclose. Besides, the thesis discusses the content of the obligation.In the third part, on the basis of comparison of the different provisions of the components of the silent fraud in the two legal systems, it is clear that our country should draw lessons from the practice of civil law countries and directly provide its components. As a kind of civil fraud, based on meeting the general fraud, the elements of the silent fraud have been reconstructed accordingly because of the existence of the obligation to disclose, which specifically manifests to ease the subjective intention and causation components.The fourth part is about the contract law of our country, firstly enumerates the general provisions of the silent fraud in the "contract law", analyses the provisions in the format clauses and sale, gift, transportation, storage, warehousing and other types of special contracts for breach of the obligation to disclose resulting in the silent fraud; secondly, in the consumption and real estate transactions fields where the obligation is obviously given one of the parties, on the basis of analyzing the existing provisions of law and judicial interpretation, proposes some suggestions to perfect legal regulation for the silent fraud; finally puts forward that the relative person by fraud may request to cancel the contract, or require the fraudster bear liability for contracting fault and breach of contract and other rights relief methods.Based on the discussion of scholars to the obligation to disclose, this thesis makes clear that the existence of the obligation is the basis of the silent fraud once again, comprehensively analyses the theory of the theoretical foundation, source, content, implementation conditions and exemptions etc. of the obligation, completely constructs and analyses elements and particularity of the silent fraud. Finally, the thesis focuses on the law of our country, points out the shortages of the existing provisions of the "contract law", puts forward some suggestions for improvement, and provides some references to the theoretical research of the silent fraud in our country.