A Study On The Amendment System Of The Grossly Unconscionable Contract

The amendment system of the grossly unconscionable contract is the research object in this paper.Analysis whether to keeping or abolishing the amendment system of the grossly unconscionable contracts,and how to improve and perfect the amendment system,by historical,logical,comparative,and philosophy approach.In order to build a more reasonable system of contract change.Besides the introduction,the dissertation consists of four chapters,approximately 34,000 Chinese characters.The first part reviews the social and economic background of development of the doctrine of unconscionability.The doctrine of unconscionability is to protect the justice of bargains and find a balance between freedom and justice.Then,it discusses the remedies for the grossly unconscionable contract.Respectively introduce invalid theory,revocable theory and changeable theory.It can be found that there is a tendency of relieve in the relief of the unconscionable contracts,and the changeable theory is the mainstream of the world today.At last,it introduces the relevant system of our country,although the current "contract law" has taken the theory of change,the new legislation shows the trend of deleting the system.The second part demonstrates the rationality of the amendment system.Firstly,it explains the effect,nature and mode of amendment.Then it introduces the criticism of the academic circles to the amendment system: Mainly concentrated in the destruction of autonomy of will,contrary to fairness and the abuse of judicial power.However,the author argues that it is reasonable to the amendment system in the field of unconscionable contracts,and responds to criticism based on the reasons of social standard,the purpose of the system of unfairness and the stimulation of business activities.So as to establish the legitimacy of contract amendment under the unconscionable contract.The third part introduces the obligation of renegotiation into the unconscionable contract.In order to make up for the deficiencies in the system of amendment.Firstly,it introduces the obligation of renegotiation,which comes from Clausula rebus sic stantibus.It based on the theory of business base,relational contract theory etc.Furthermore,it demonstrates the value of renegotiation from the aspects of cost saving,the party autonomy realizing and the protection of the vulnerable party.Then,it explains the nature and contents of the obligation of renegotiation.Renegotiation only creates an opportunity of consensus,the parties do not have the duty to consent.Its nature is obliegenheiten or attached duty,by making the parties liable for breach of obligation bear some responsibility,so as to urge the parties to renegotiate,and create opportunities to resolve disputes through consensus.Finally,prove the possibility of applying the renegotiation in the grossly unconscionable contract.On the one hand,there is the foundation of transplanting legal system;On the another hand,no matter from the juridical logic of the renegotiation obligation,or on the application of analogy,the transplantation is feasible.The fourth part is the reconstruction of the amendment system,mainly reflected in three aspects.First,determine the enjoyment of the right to amendment the contract.The right to amendment,whose nature is the right of formation,can only be exercised by the injured party,the dominant party only has the right to request a amend of contract in the form of renegotiation.Second,clarify the relationship between amendment and revocation,the application of revocation or amendment is equal.It is unnecessary to try amendment contracts at first.Third,establish the obligation of renegotiation before the injured party requests the court to amend the contract or after the profit side is in a timely position to request a amendment.Expound the consequences of violating the obligation of renegotiation,which are the limitation or loss of the right to amend,or assuming the liability for damages.