Research On The Prevention And Control Mechanism Of Contract Legal Risks From The Perspective Of Legal Methodology

The status of contract in economic life determines the importance of the prevention and control of contract legal risks.However,the background of cost law as the core of contract law education has not formed a scientific methodology system for the prevention and control of contract legal risks.In the current research on the prevention and control of contract legal risks,legal practitioners tend to emphasize the conclusion over the process and ignore the application of methodological knowledge.Correspondingly,scholars of legal methodology mainly focus on the judicial field,and have not yet extended their research focus to legal practice,resulting in the situation that legal methodology scholars are not familiar with the principles of legal practice,while legal practitioners do not recognize legal methods.As a result,it is difficult to build a knowledge system of methodology for the prevention and control of contract legal risks.However,this problem can still be solved from the research trend of prevention and control of contract legal risk.The improvement of contract legal risk prevention and control methods is reflected in the accumulation of practical experience by legal practitioners to summarize contract legal risk points,the planning of risk prevention and control steps and the construction of risk prevention and control system.And through studying the trend of prevention and control of contract legal risk can also be found that the study of the two steering: one is the legal risk prevention and control has been turned to the inter-subjective perspective from the perspective of subject,the legal risk prevention and control of the parties to a contract to get the contract as a linear review activities subject to object,and regard it as a contract between the parties,the parties to a contract and its management and rational interaction between specific executive behavior;Second,the research standpoint of the prevention and control of contract legal risk has shifted from the normative model to the multi-perspective.The prevention and control of contract legal risks is not a specific risk point and solution based on the preconditions,but rather a process of analyzing and solving problems from multiple knowledge backgrounds.It is also following the research direction of prevention and control of contract legal risks that the author takes legal methodology as the research perspective and analyzes the prevention and control mechanism of contract legal risks based on its multidisciplinary theoretical knowledge system,hoping to improve the prevention and control efficiency of contract legal risks.The prevention and control of contract legal risks include risk identification,risk analysis and evaluation,risk control and elimination,etc.The identification of contract legal risks is the first step of risk prevention and control.The task is to identify and describe the risk points scattered throughout the contract.Every risk point may be the reason that hinders the realization of the purpose of the contract.Therefore,the importance of risk discovery lies in its comprehensiveness.In order to avoid the omission of risk points,the logical element analysis method can be adopted to check whether the formal and substantive elements of the contract are missing or not,and whether there is a contradiction between the elements,so as to conduct an all-round review on the main content of each element.After reviewing the contract elements and discovering the risk points in the contract,it is necessary to identify and describe the review results with a typological thinking.Although the contract law does not stipulate the types of legal risks,which makes it impossible for us to include contract legal risks through legal concepts and seek corresponding solutions,the problems of different legal risks in the contract that require different solutions need to be solved with the help of types.After the contract legal risks are identified,they need to be analyzed and evaluated.The purpose of analyzing and evaluating contract legal risk is to clarify the factors and the degree of the influence of contract legal risk.Because the inherent power of contract lies in the interest game between multiple subjects,it is necessary to measure the conflict of interests behind the analysis of the legal risk of contract,so as to make a rational value judgment conducive to the realization of the purpose of contract.It is worth emphasizing that,different from the measurement standard of interest in the field of public law,the measurement of interest in contract legal risk analysis always takes the maximization of one's own interest as the criterion of contract behavior.The evaluation of contract legal risk is to clarify the degree of its harm,which depends on the extent to which it hinders the realization of the purpose of the contract.The dynamic nature of contract operation requires full consideration of the context in which contract legal risks are generated,and the relevance between contract purpose and legal risk in different contexts can be evaluated so as to clarify the influence of contract legal risks on contract purpose.After the contract legal risks are identified,analyzed and evaluated,it is necessary to seek appropriate solutions.The key to control contract legal risk is to build a good risk prevention mechanism.On the one hand,it can be timely filled when contract loopholes are found;on the other hand,it is necessary to actively establish a firewall rule system according to the purpose of the contract and the transaction bottom line of the parties.And when the contract legal risk has already occurred or even caused a contract dispute,the parties should take the initiative to file a lawsuit or apply for arbitration,and actively collect evidence to support their claims,in addition to reaching a new agreement through consultation.