Obvious Equity Empirical Research

Obvious loss of fairness is a product of seeking balance between the freedom of contract and the right to contract,which can correct the existence of significant inequities in certain contract terms and ensure the justice of contracts.China's apparently unfair institutional rules continue to be subject to the “profiteering behavior” rule of the German law.However,in the provisions of the“General Principles of Civil Law” and the “Contract Law”,the subjective and objective elements of the rule are divided into two,broken into Carry on the danger and apparent loss of fairness in the two systems.This splits the mature system into two different systems,which brings confusion to the manifestation and application of unequal fairness.Academic circles have been arguing about the constitutive elements of unequal fairness and the problems of obvious fairness and waste.In the judicial practice,the judgment of the court for unequal fairness is also more confusing.The promulgation of the “General Principles of Civil Law” has returned the provisions of China's apparent unfairness back to the logic system that reverted to the drastically profitable behavior of the traditional civil law system.It provides clear guidance on the theory and practice of unequal fairness.This article mainly analyzes the present situation of judicial practice of China's manifestly unfair system from the perspective of judicial practice,analyzes the existing problems,and proposes solutions.This article uses the method of empirical analysis,through the type and data analysis of the judgment documents,mainly analyzes the case data from three dimensions,and discusses in detail the criteria for determining the objective factors of unequal fairness and the criteria for determining the subjective elements of unfairness.To find out whether the unfairness in judicial practice in China is based on the single objective element or the subjective and objective double-important element.What are the criteria for determining the objective and subjective elements? Whoever bears the burden of evidentiary fairness? Finally,this article deals with the newly promulgated Civil Law.The 151 th article of the General Principles commented that it was inappropriate to establish the criteria for determining unfairness and the legal effect.The main research content of this article is as follows:The first part reveals the origin and evolution of the unfair system from the perspective of comparative law,discusses the origin and development of the unfair system in China,sorts out the legislative evolution of the unfair system in China,and discusses the Chinese academic community.The controversy over the controversy between the apparently fair elements of composition and the dangers of humanity and the apparent fairness and waste.The second part analyzes the data and type based on the judgment of the application of 96 explicit equity systems.The data analysis was mainly conducted from three aspects: the party's submission of the apparent fairness court's refusal,the party's presentation of the apparent fairness court's adoption,the court's decision to adopt the single element,the court's decision to adopt double important items,and other cases.Analyzes the winning ratio and the losing rate of the judgment applying the unfairness fairness system.The court adopted the ratio of single and dual important items and the proportion of the time period in which the party exceeds the delisting period and does not meet the time requirement of unfairness.The third part,on the basis of empirical analysis,puts forward the problems existing in the application of the unfairness system in China's judicial practice and its countermeasures.The fourth part,commenting on the newly promulgated Article 151 of the "General Principles of Civil Law," holds that the objective elements of unequal fairness in the "General Principles of the Civil Law" should be explained by the theory of "marginal utility",subjective to the unequal fairness.The requirements only stipulate the critical state and the lack of judgment,and the lack of "inexperienced" is not appropriate.The right to abolish the change of the legal consequences of unequal fairness is more agreeable.Afterwards,it analyzes the influence of the unconscionable fairness system on the application elements and interpretation methods in judicial practice.This paper adopts an empirical method and selects 96 judgments involving obviously unfair systems for data analysis.Compared with the existing methods that use more qualitative analysis methods,this research method has been expanded.Therefore,the research results are more objective and credible.This paper discusses the problems in the judicial practice of the unfairness system,especially the balance between the objective factors and the subjective requirements.The research findings are more targeted.From an empirical point of view,it provides some references for the further improvement of China's "explicitly unfair system" and the reduction of academic disputes.