The Research On Unconscionablity In China

Codification work of civil code that began last year is still in full swing.As Montesquieu said: “In the eyes of civil law as a loving mother,everyone is the whole country.” The civil law is closely related to our daily lives.General principles of civil law play a basic guiding role in the civil code.This article researches on unconscionablity,not only because it is becoming more and more important in a free market economy,but also because of unconscionablity in the General principles of civil law has been controversial for a long time.What is more,the judicial application of unconscionablity is in chaos,which is bad for realization of value of law.Therefore,this article pays special attention to the provisions of unconscionablity in General principles of civil law,combined with the sources of legislation and foreign legislative experience,fully analyses law system,academic theory and judicial case of unconscionablity,and investigates the recognition of unconscionablity,etc.This article has four chapters.The first chapter,“the Foreign Legislative Models and Value Theory of Unconscionablity”,mainly on introducing Roman law,French law,German law,common law unconscionablity system and discussing theoretical basis of unconscionablity,that is,contract freedom and contract justice theories in modern civil law.The second chapter,“Unconscionablity in Chinese Civil Law”,talks about evolution of our country's unconscionablity,including the differences with foreign law,the interpretation of subjective constitutive requirement and distinguish among fraud,duress,misunderstanding,and the principle of change of circumstance.The third chapter,“judicial practice of Unconscionablity”,through multiple cases,reveals the different application of unconscionablity between commercial subjects and civil subjects.The fourth chapter,“Improvement of China's Unconscionablity”,puts forward a three-point conception to perfecting unconscionablity system.The first chapter is about the foreign legislative models and value theory of unconscionablity.Unconscionablity dates back to the Roman law “Very Lost Rule”,also known as the “Short More Than Half of Rules”.It is the earliest form of unconscionablity in law system.The “ContractDamages” rules in France was inherited from the “Very Lost Rule”,providing that if the party suffered unreasonable losses resulting from unconscionablity for some contracts,then some people can cancel the contract.Until now unconscionablity does not have universal significance,it is not a general rule in the field of civil law.The “Profiteering” in Germany adds party's subjective factors to the constitutive requirements of unconscionablity.But “profiteering” aims to safeguard the principle of good social customs instead of the principle of fairness.In common law jurisdiction,the doctrine of unconscionability includes both “procedural” and “substantial” aspects,which involves the interpretation of the spirit of traditional contract,and is more practical.Due to contract freedom and contract justice in modern civil law has separated,unconscionability is going to balance contract freedom and contract justice,so as to achieve the goals of the Justice of the law.The second chapter introduces the unconscionablity in Chinese civil law.From 1986,General Principles of the Civil Law of the People's Republic of China(hereinafter referred to “Civil General”)establishes the doctrine of unconscionablity,to Contract Law of the People's Republic of China(hereinafter referred to “Contract Law”),and Opinions on Supreme Court on implementation < Civil General > several problem(pilot)(hereinafter referred to “Opinions on Civil General”)on explains the doctrine of unconscionablity,again to Experts Recommendations to Civil Code · Civil General of the People's Republic of China(hereinafter referred to “Expert recommendations”),Experts Recommendations to Civil Code · Civil General of the People's Republic of China(submitted version)(hereinafter the “submit manuscript”)modifies the doctrine of unconscionablity,and now General Civil Version One,Version Two and Version Three have made the constitutive requirements and legal effect of unconscionablity identified.Unconscionablity in China does not copy any foreign rules.Unconscionablity in China is also different with fraud,duress,misunderstanding,and the principle of change of circumstance in the current law,unconscionablity has its independent value.Existing provisions of unconscionablity,especially the subjective constitutive requirement has certain problems,it is a good opportunity to solving the problem during the codification of civil code.The third chapter is about to analyses the question of identification of unconscionablity.Firstly,the article divided many cases involving unconscionablity into unconscionability between legal persons and unconscionability between natural persons.Secondly,the Chinese judges' views about the constitutive requirements of unconscionablity are divided into two theories,the “single requirement” theory and the “double requirements” theory.Finally,the article makes some conclusions.On confirmation of unconscionability between legal persons,the court rely more on price terms,even if there is a investigation of the subjective factor,it may not be the subjective factor of unconscionability.On confirmation of unconscionability between natural persons,the court still focus on price terms and limitation of liability provisions,ignoring the subjective review.And by discussing many cases in the judicial practice in China,it seems that the “double requirements” theory is much more reasonable in the identification of unconscionability.The last chapter is several ideas of perfecting unconscionability system.At first,improve the constitutive requirement of unconscionability.As to the substantive standards,we should take both the nature of the contract and the commercial practice into consideration;as to the procedural standards,whether one can understand contract or has the right for bargaining is the key to be taken into account.Second,classify the case involving the unconscionability in order to use different methods to settle the disputes.Last but not least,emphasize on the allocation of burden of proof,to help the judicial practice more conveniently.To sum up,this article thinks unconscionability should be clearly defined in the General Civil,the civil code in the future,eliminating some scholars' doubts about retention or abolition of unconscionability.And unconscionability system reflected in the General Civil should be one that is both principled and flexible,it is a elastic clause,too.Unconscionability in terms of the General Civil can be defined as “if one cannot understand the contract or there is no room for bargaining,civil juristic acts upon the establishment is very unfair,then the aggrieved party has the right to request the people's Court or an arbitration institution,to revoke."This research on unconscionability,in order to improve the unconscionability system,so that unconscionability will play a more active positive role in maintaining the social and economic environment of fairness,stability and harmony.