On The Theoretical Basis And Judicial Application Of Silence As Meaning Representation

The rapid development of market economy requires diversified forms of expression of intention.Silence,as a simple way of expression,has attracted more and more attention.Silence has rich meanings,which can be interpreted as promise,acquiescence,rejection and opposition in civil and commercial exchanges.Because of its own fuzziness,the law has always been highly cautious about this,only in three cases to recognize the legal status of silence.However,it is also because of the narrowness of the provisions that judicial practice is frequently confronted with difficulties.This paper aims at the current situation of the judicial application of silence as a system of expression of will,analyses the dilemma faced by the system,and puts forward suggestions to improve the system,which is divided into five parts for analysis and research.The first part is the introduction,which mainly introduces the purpose and value of this study,the research status at home and abroad and the main content of the study.The system of silence as the expression of will is grasped as a whole.The second part and the third part are mainly theoretical groundwork.Firstly,the legal concept and characteristics of silence as expression of will are introduced,and three types of silence are specifically analyzed.On the basis of theory,the theoretical cornerstone of the system is elaborated from two aspects of interest consideration and value needs.The fourth part introduces the judicial application of silence as expression of will.Through the statistical data of silence as expression of will cases in recent years,and introducing four typical cases,it specifically analyses the characteristics and current situation of the application of the system in judicial practice,and points out two major problems: the inconsistency of applicable standards and the application of preference for arbitrary norms.The fifth part,aiming at the existing problems in judicial practice,puts forward suggestions to improve the system of silence as expression of will.Specifically starting from three aspects,one is to strengthen the relationship between silence and expression of intention by using the rule of experience,theother is to expand the legal provisions of silence as expression of intention,and the third is to increase the interpretation norms of silence as expression of intention.At the same time,it is pointed out that improving the system should combine various means and technologies,including legislative technology,legal principles,interpretation methods and so on.