Unconscionability: How To Strengthen The Applicability Of Refereeing Standards

Unconscionability is a principled and basic institutional structure in the contract law of China.It is a supplement and extension of the spirit of contract justice in the field of contract law.In our country,some scholars believe that contract justice is not parallel with contract freedom,justice and fair.Justice should be the ultimate value goal of contract law.Therefore,the study of the unconscionability is even more important,so that it should be tilted when the benefits are measured.From the perspective of empirical research,the development of the unconscionability in our country has not reached the level of expectation at present,and there are some problems in the practice,which is rooted in the change of the present contract environment,and the standard of the unconscionability has not been able to follow the process of the development of the times.It is difficult to effectively used in the work,so it is difficult to give full play to the purpose of the rule or achieve the purpose of the standard.Simply speaking,the structure of trial related system is not perfect,which results in incomplete referee attribute.In the practice of American law,the United States "unified Commercial Code" 2-302 formally created the modern sense of unconscionability,which is a milestone in the history of the development of unconscionability.And Maxwell v.Fidelity Financial Services,Inc.case is also called the classical discussion of the applicable cases of UCC 2-302.Taking this case as an example,it is beneficial to expand and improve the dimension of the perfect judgment of the unconscionability in China.From the reality of our country,we use the data as the object of the study to analyze the problems arising in the judicial practice,and found out that the results of the comparative study and the empirical study are not strong in unconscionability,and the problem of it’s standard is analyzed,and the experience gained from comparative law is used to provide useful reference for the perfection of the rule in our country’s law.This article consists of four parts:The first part introduces the basic theory of Unconscionability.Firstly,it introduces the historical evolution of the unconscionability and introduces the emergence and development of the unconscionability.Secondly,taking the development course of China’s unconscionability as the main line,it analyzes the origin,connotation and theoretical basis of "objective elements theory " and "two elements theory".Thirdly,by analyzing the relationship between the “unconscionability” and the word “fair”,we can make the real meaning of the unconscionability.Finally,through the analysis of the relationship with the principles of civil law,the explicit extension of the unconscionability is clearly defined,the theoretical background and major contradictions of the law of the unconscionability are discovered through theoretical research.The second part analyzes the case of Maxwell v.Fidelity Financial Services Inc..According to the facts and processes,applications and issues,and the complete logical line of conclusions,the cognizance and analysis of the trial process of the case will be prepared for the comparative study and conclusion.Through the empirical revelation triggered by the Maxwell v.Fidelity Financial Services,Inc.and the UCC 2-302 rules as the main line,the essence of the "substantive" unconscionability and "procedural" unconscionability is discussed,and the detailed interpretation of this experience may be a useful reference for the judicial practice in our country.The third part conducts data analysis and comparative analysis.Through research on the combined use of the two ways,the problem of unconscionability in practice is illustrated,and attempts are made to analyze the causes of the problem.That is,in the absence of honesty and credit and freedom of contract,the traditional way of expressing intention purely as a way of research is no longer suitable for current needs;There is a large gap in the interpretation and annotation system of civil law at present,which leads to a significant reduction in the vitality of the regulation in practice.The introduction of the general principles of civil law brings opportunities as well as more challenges.The integration of each specific rule for the civil code is becoming more and more important.The fourth part discusses the perfection of the standard of judicial rules.First,the criterion of the unconscionability should be divided into the function with the other system or principle,try to clarify the connotation and return to the essence of rules.Secondly,by combines the reality of our country and the "substantive" and " procedural" unconscionability rules in the US law,in the light of the improvement of the ability of the judge to deal with the actual cases,we tries to demonstrate a possible formula to calculate the possible burden of proof which is in line with the actual situation of our country,and tries to put forward a possible standard design.Thirdly,we should perfect the construction of the system of expressing the defect of the meaning and construct it through the theory of interpretation,and work together to provide the suitable soil for giving full play to the unconscionability.Further through the growth of the civil law of hermeneutics,to make full use of the vitality of the system in order to fit the original intention of the rule design.