On Rechtsschein Theorie Of Commercial Law

Rechtsschein theorie,also called appearance theory,is a fresh rule of law created by a German jurist in the beginning of the 20 th century.In order to adapt to the developmental requirement of the social commodity economy in Germany,it can be used to conceal the legal relationship between the apparent obligee and the real so that the public can only catch the external facts and the superficial characteristics of the legal relationship.Besides,to prevent the third party from the damage to his/her own rights and interests after carrying out legal acts due to the reliance on the external facts,it is stipulated in Germany law that the legal act implemented by the third person in good faith is effective and his/her purpose of the transaction is protected by law in the case that the external facts and the internal legal relationship are not consistent.And the benefit loss caused by the inconsistency will be borne by the real obligee.In this regard,this paper intends to study the rechtsschein theorie to analyze how to deal with its suitable straits in reality.There are,exactly,four parts that contribute to this paper.In the first part,the fundamental theory of the rechtsschein theorie is expounded.Its definition in law will be discussed and it will be divided into three types according to the different purposes.Secondly,the differences between the rechtsschein theorie and other similar theories will be elaborated,such as estoppel rules,the principles of reliance protection,ideographic doctrine and so on.On this basis,the theoretical foundation of the rechtsschein theorie is obtained to protect the dynamic security and reduce the risks in the transaction.Thirdly,the significance of the rechtsschein theorie in the commercial law is discussed,especially its orientation in law and its function in the whole system of the commercial law,specifically including doctrine of liability fixation,principles of behavioral effect,legal mode of commercial right,criterion in commercial judgment and selective principle.The second part focuses on the specific applications of the rechtsschein theorie and the problems existing in the applications with the actual cases regarded as the breakthrough point.First of all,the rechtsschein theorie must be provided with the external facts with diverse patterns of manifestation.However,there are not only the natural appearances but also the legal ones in the law.And the scopes of the appearance of facts,in general,are defined by different standards.In particular,there are divergent ways to classify according to the divergent levels of the importance of the transaction facts as well as the appearance of facts on whether it need the special stipulations in law or not.Secondly,the facts must be possessed with the rules to create the appearance of responsibility in the process of the application of the rechtsschein theorie.In essence,the appearance of responsibility is a kind of unreal obligation.And only when there is a correlation between the legal facts that give rise to the legal consequences and the actual legal subject,the legal consequences should be borne by the legal subjects.Finally,while the rechtsschein theorie is being applied,the assessment of the reasonable reliance towards the private party of law is a crucial factor,which includes the content of the reliance,meritorious affirmation and other exceptional cases.The third part focuses on the existing problems of the rechtsschein theorie under the circumstance of the civil-commercial combination.This part of the discussion starts from two aspects.One is the analysis on the influence of the civil-commercial combination towards the effective judgment,especially the conflict between the principles with reasons and those without reasons as well as the conflict judged by the rules of validity.The other is the discussion of the conflict on the elements of the appearance validity and that of the unauthorized principles after the changes of rights,which is started from the influence of the civil-commercial combination towards the appearance requirements.The last part intends to expound the dilemma of the application of the rechtsschein theorie and its solutions.From the perspectives such as the value conflict between civil law and commercial law,the idea that value orientation determines the legislative model and so on,this discussion will lead us to find a feasible way to solve the problems of the application of the rechtsschein theorie in our country.