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Study On The System Of Unconscionability

Posted on:2018-01-08Degree:MasterType:Thesis
Country:ChinaCandidate:R Z WuFull Text:PDF
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There exists no contradiction between the system of unconscionability and the principle of contractual freedom.The system is created to balance contractual freedom and contractual justice and embodies the value of law.From the view of comparative law,we can find the system of unconscionability in the civil law system and the common law system.But different legislative mode was implemented in different country and it produced theoretical disputes.If we locate the system in the defects of meaning expression,it can express the true meaning of parties.The doctrine of double constitutive requirements provide a more strict and accurate identification criteria of subjective and objective formation.The multiple legal effect pattern can provide better protection of vulnerable groups and maintain transaction order.In China,the General Rules of the Civil Law of the Peopleís Republic of China stipulates a new system of unconscionability.The provision back to the traditional civil law and it responds some of the theoretical disputes.But in the constitutive requirements,itís better to set a objective constitutive requirement combine with abstract and specific standard.The subjective constitutive requirement also need to be explained in more detail.In the scope of application,itís better to distinguish based on the contract subject and different fields to improve the maneuverability of the system.In the legal effect,itís too absolute to delete the change right.The judicial organ can change the clause of price and property under the agreement of parties.These measures are helpful to achieve the pursuit of substantive justice.
Keywords/Search Tags:Unconscionability, Contractual justice, Excessive profiting system, Constitutive requirements
PDF Full Text Request
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