On Judicial Cognizance Of Contractual Information Disclosure Obligation

From a modern point of view,the establishment and performance of any contract is not only the process of realizing the rights and obligations of the subject,but also the process and result of a series of information exchange.The expression of intention of the parties to a contract is based on the possession of sufficient information.When is the party obligated to inform the other party of the contract information.The general theory holds that it should be recognized according to the bona fide principle.Since the law of our country does not stipulate the general obligation of contractual information disclosure.In practice,the judge directly invokes the bona fide principle to determine the information disclosure obligation of the contracting party,which often causes the conflict of the judgment result.How To make the judicial cognizance of the obligation of contractual information disclosure have the predictability of judgment is still to be studied by the theory of case law.This paper is divided into three chapters:The first chapter analyzes the foundation of judicial cognizance of contractual information disclosure obligation.First,from the point of view of jurisprudence,it analyzes the reasons for the existence of contracting information disclosure obligation.There are two attitudes in the law towards contractual information disclosure obligation,from the course of legal negation to the acceptance of contractual information disclosure obligation,we can find out why the parties should bear the obligation of informing under certain circumstances.Secondly,from the perspective of flexible system approach,it provides methodological guidance for the judicial determination of contractual information disclosure obligation.It is feasible to apply the flexible system approach to the judicial cognizance of the contractual information disclosure obligation,because the flexible system approach is congenitally consistent with the judicial cognizance of contractual information disclosure obligation.The second chapter faces the issue of judicial cognizance of contractual information disclosure obligation.This paper analyzes the disclosure obligation of concluding a contract in judicial practice by using the China judicial documents network as the database.Based on the analysis of three types of cases that are often involved in disputes over the obligation of information disclosure in contractual,this paper finds that the recognition of the obligation of information disclosure in contractual often results in conflicting judgment results and analyze the reasons behind it.The third chapter is to improve the standard of judicial cognizance of contractual information disclosure obligation.In order to reconstruct the standard of judicial cognizance of contractual information disclosure obligation,this paper extracts the factors considered by court in cognizance of contractual information disclosure obligation through flexible system approach.Then,combined with the legislative provisions and judicial path of the information disclosure obligation,the author puts forward some ideas and suggestions on the information disclosure obligation.