On Cognizance And Application Of Unconscionable Juridical Act

The system of unconscionable civil act originates from the system of excessive profit in German law,which is divided into two parts,that is,unconscionability and taking advantage of others' difficulties.Since the General principles of Civil Law,China has established the system of unconscionable civil act,and the contract legislation is basically followed.However,Article 151 of the General principles of Civil Law,which is the beginning of our country's civil code,has made great changes to this system.The main changes are as follows:first,it absorbs the system of taking advantage of others' difficulties and expands its extension;The second is to make a new expression of the connotation and definition of unconscionability,and the third is to delete the amendable legal consequences of unconscionability,and only to stipulate its revocable effect.These legislative changes and their influence of juridical judgment are worth studying and discussing.The relationship between justice and freedom is severed by the provisions of the separation of unconscionability and takes advantage of others' difficulties,which are unreasonable.In judicial practice,there is an overlap of the scope of application between the two.Due to the legal provisions are relatively principled,there are many disputes between them on the identification and component.Although there are differences between taking advantage of others' difficulties and unconscionability,the focus of civil law regulation lies in the imbalance of the rights.Therefore,the system of unconscionable absorbs the system of taking advantage of others' difficulties is reasonable.The system of unconscionable civil act occurs in the bilateral contract such as sales contract.In judicial practice,the court or the arbitration institution should consider the concrete factors and abstract factors in determining whether the parties'rights and obligations are out of balance.The concrete factor refers to the difference and proportion between the transaction price and the benchmark price and so on.The factors refer to the factors that need to be judged in the individual cases,such as whether the purpose of the contract can be achieved or not.In practice,these factors are difficult to quantify and bring great trouble to judges and parties.It is not the simple inequality of rights and obligations,but the importance of "explicit",the difference between the transaction price and the base price is more than 30%.,which can be determined by the court or arbitration institution combined with economic,policy and other factors.The subjective element of unconscionability is that one party has the intention of taking advantage of the other party's state of distress and lack of judgment ability.Taking advantage of the other party's state of distress means the party is still asking for an obviously unreasonable payment when there is knowing that the other party is in distress.The state of distress includes the urgent need for goods or money due to temporary urgency and distress.It also includes the disadvantage that the payer can get rid of through extra money.To make use of the other party's lack of judgment means utilization of the other party's lack of the rational thinking and evaluation ability of civil juristic act.The expression of "and other situations" has a function of subbottom,and also includes the use of the dependence or dependent relationship,use of others'weak willpower and use others'indiscretion.Utilize is based on knowing,the perpetrator knew that the other party was in a disadvantageous situation but still went to pursue unconscionable interests.The General principles of Civil Law stipulate the legal effect of unconscionability as amendable or revocable,which makes the court or arbitration institution have the right to unilaterally change the contractual terms agreed upon by both parties,and its legitimacy and rationality should be questioned.However,the right to amendment has certain value to maintain the stability and efficiency of the transaction,so deleting it in the General Principles of Civil Law will lead to other problems.The right of amendment has been abolished in the General Principles of Civil Law.But it still exists in contract law.There is a conflict of application of law between the two.And according to the new law is superior to the old law,the General Principles of Civil Law should be applied.Except for contractual acts,other civil acts shall be governed by the provisions of the General Principles of Civil Law.China is in the process of compiling the Civil Code,and the contract law will also be included in it.In order to eliminate the effect conflict between the provisions of unconscionable civil juristic act to maintain the unity within the Civil Code,the right of amendment should no longer be stipulated in the part of the contract.Legislation limits the excessive interference of public power organs in the autonomy of will,but does not interfere with the declaration of intention of free consensus between the parties overly.Therefore,In the judiciary,facing the diversified interest demands of the parties,the request of the parties to amend the contents of the contract by consensus in the unconscionable civil shall be confirmed within the law.For the request to revocation of unconscionable part and reserving the subject part of contract shall also be supported in cases provided by law.