Research On Rechtsschein Theorie Of Commercial Law

Rechtsschein Theorie originated from the Germanic law,It existed initially as an exceptional rule of civil law,and later was widely applied to China's commercial law and practices.But in China,Rechtsschein Theorie was studied relatively late and the System of this theory is still not complete.Through the literature,empirical and comparative analysis methods,the study of the theoretical core of Rechtsschein Theorie and the particularity of the commercial law from the perspectives of connotation and type,necessity,applicable requirements and legal effects are conducive to the application of Rechtsschein Theorie in Commercial Law,which provides Proposal for feasibility with system construction.The type of legal relationship in the commercial law is different from the traditional civil law,and it should be divided into the legal relationship between the two parties and the three methods.Rechtsschein Theorie has the necessity in the methodology.Namely,it should be used as a new paradigm for the understanding of commercial law.Scholars have controversy about the specific application requirements of it,and have not formed a general statement about it.The application of Rechtsschein Theorie in commercial law is special,thus the three essentials: here are business appearance of truth,the perpetrator provided the cause,the reasonableness and trust of the good-will relatives in business and business relationship are much more reasonable.And the identification of the applicable elements of it have special criteria in commercial law:Social experience and objective perception are the criteria for determining the facts of business appearance;the cause of perpetrator provided should have proven traits and conform to the general trading concept;Drawing on the US common law's provisions on "goodwill" is conducive to proposing better rules of recognition;A reasonable person's thinking is the most fundamental criterion for reasonable security.There are controversy and confusion about the scope of the third party of the protection of the realism in the business facts.In contrast to the contradictory judgments made by the Supreme Court in recent years on the two cases in which the case is basically the same,the author argue that the range of the third person under the externalism in the commercial law should be limited to A third party with direct contact,and should not extend to creditors who are not based on equity.The case-based analysis concludes that Rechtsschein Theorie does not apply to internal relations,the third party to a malicious business,or the name of a commercial right holder.In addition,the application of Rechtsschein Theorie in Commercial Law does not necessarily produce a positive effect of effective behavior.When the requirements for the entry into force of the Act are not met,the reliance liability responsibility for commercial arises.The meaning is the legal composition of the behavior.The way in which commercial law deals with the inconsistency between inner and outer behavior is different from the general rules of civil law,It focuses on the duty of care and the level of attention.Theoretical research is the cornerstone of institutional development.In short,It is the choice of institutional progress to study Rechtsschein Theorie from the perspective of comparative law.,The construction of the applicable elements of Rechtsschein Theorie is an effective way to perfect its core,institutionalize it and form a complete system.