Research On The Expression Of Intention Lacking In Judging Ability

Using others' lack of judging ability can lead to unconscionability,which has been confirmed by scholars at home and abroad.But the legislative models and academic theories about it are widely divergent.The General Provisions of Civil Law of P.R.C reconstructed the system of unconscionability and adopted the "dual key theory" to make subjective standards of unconscionability clear,such as lack of judging ability etc.Which returned to traditional legislative models.There are still controversies in this legislation,because the definition of lack of judging ability is still not specific enough to guide judicial practice.This thesis discusses lack of judging ability by considering the legal provisions,academic viewpoints,judicial cases and foreign legislative experience,which aims to improve the criteria of lack of judging ability,provide sufficient legal remedies for parties.And it will make substantive fairness and justice come true.Besides introduction and conclusion,this thesis is divided into five chapters.Chapter 1 is overview of expression of intention of lack of judging ability.First of all,it introduces and analyzes legal definition of lack of judging ability and unconscionability at home and abroad.Secondly,it analyzes the scope of lack of judging ability,including the factors of lack of judgment and its exception.Finally,it analyzes legal basis of lack of judging ability,which mainly lies in legal regulations?the principle of good faith and the principle of autonomy.Chapter 2 analyzes the expression of intention of lack of judging ability.Firstly,it analyzes the judging standard of lack of judging ability.That is how to grasp the legal true meaning of the lack of judging ability in specific cases,which is judged by the cognitive standards of the general public or cognitive standards of specific person.Secondly,it analyzes the application of the legal true meaning in special circumstances,for instance,the negation of legal true meaning in the antique market where the "unfidelity Rule" is widely used,strictly informing obligation in special industry etc.Chapter 3 analyzes expression of intention of lack of judging ability and related legal actions.This chapter mainly analyzes differences among the expression of intention of lack of judging ability,wrong legal act and invalid legal act,and discuss location of unconscionability in academic circle.Chapter 4 analyzes the legislative defects of expression of intention of lack of judging ability,which mainly discusses by following aspects:the establishment of obvious unfairness is uncertain,the distribution of the burden of proof,the scope of application and the singleness of legal effects.The last chapter proposed legal advises to perfect expression of intention of lack of judging ability.First of all,it begins with the subjective and objective elements in unconscionability result.The subjective elements clarify lack of judging ability and the definition of "utilization".The objective elements combine abstract standard and concrete standard as a legislative model;secondly,generally,"presumption" rules should be applied to the burden of proof.The burden of proof should be reversed exceptional circumstances.Then the scope of the application mainly lies in contracting parties and the application of field,it should restrict the scope of the system strictly.Finally,confirming to analyze legal effects in different situations,restrictively keeping the rule effect of change in legal effects or retaining the revoking effect meanwhile giving other remedies to protect rights and interests of people who is lacking in judging ability.