Research On Legal Problems Of Silent Fraud

Silent fraud is a fraud in the form of inaction as opposed to fraud as a form of positive behavior.Silence fraud have experienced a process that has been negated to the recognition of the Caveat Emptor principle,and then it is generally believed that silence can constitute fraud in exceptional circumstances in other states.Silent fraud is not only few mentioned in the formal laws and regulations but the academic community also discussed very little in our country.Silence itself is a kind of pure omission,as opposed to positive behavior,it is difficult for the court to identify the composition of fraud based on the appearance.With the increasingly common of silence fraud,countries begin to treat prior contract informing obligation(called as "informing obligation" hereinafter)as premise of silence fraud.And then identify silent constitutes fraud.However there are so many different views about the establishment of fraud and when there is informing obligation and the source and scope of the informing obligation.Silence fraud should satisfy the conditions of fraud except for the premise of informing obligation in the meantime,just there are only small differences in specific applications.The innovation of this paper is to confirm the specific elements of silence fraud's identity,on account of the inextricable problem of the recognition of silence fraud,we can only list the reference elements.After reading a large number of cases,author tries to summarize the several primary factors that can be directly referred to in judicial practice,which can be applied to solve practical problems,and hope it can scientifically ad rationally constrct the theory of silent fraud in the future civil code.On the basis of the existing theory,this paper discusses the various aspects of silence fraud and draws some thoughts and opinions on the specific problems of silence and fraud in the light of the legal provisions of silence fraud,academic theory and judicial practice.Hope this type of fraud can draw enough attention in the academics and judicial practice,as well as could be beneficial to the development of the theory of silence fraud and the judicial practice.In addition to the introduction and conclusion,the text is divided into four parts.The first part is the theoretical basis of silence fraud,mainly discuss the theory of constitution of silence fraud,and make it clear that the principle of good faith is the main theoretical basis of silence fraud;the second part is the comparison to other countries of silence fraud.Because the theory and practice of silence fraud in our country not get enough attention,the law and theory and practice in other countries can be used as a reference for the development of silent fraud theory for us.Introduce advanced ideas is able to promote the development of the theory and practice of silent fraud in our country;the third part is the present situation of silent fraud,mainly on China's current theory and legislation on silence fraud and judicial practice.Only based on understanding,we can discover problems,and then solve problems,finally achieve progress;the fourth part is the author's main point of view,the future of China's civil law in the reconstruction of the silent fraud are discussed,the theoretical basis of silence fraud are hackled.It mainly discusses the constitutive elements and identification and justification of silent fraud,explains the author's view on the basis of the existing theory.These issues in academic circle and in practice both exists considerable controversy,leads to different theories.Author tries to put forward the most suitable theory in practice for our country on the basis of the existing legal system.Silence fraud has not yet attracted enough attention in China's current circumstances,leading to that can not seek justice through the law.The lack of legal provisions and theoretical doctrine also lead to instability of judgment from the court,not to support the reasonable demands of person concerned,to protect their legitimate rights and interests.Therefore silence fraud is urgently needed to be included in the scope of legal regulation of fraud.