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The Goal And Requirements Of Obvious Unfairness Rule

Posted on:2020-04-10Degree:MasterType:Thesis
Country:ChinaCandidate:W CaoFull Text:PDF
GTID:2416330620460592Subject:Law
Abstract/Summary:PDF Full Text Request
Obvious Unfairness Rule is an important rule to regulate the effectiveness of civil juristic in China's civil law.According to the provisions of article 151 of the General Rules of the Civil Law of the People's Republic of China,the elements of the obvious unfairness rule include two aspects.One is that one party is in trouble or lacks the ability of judgement,and the other is that the content of the civil juristic acts is unfair.The significance about these two aspects,the relationship between them and the weights have always remained the controversial issues in China's academic circles and judicial practices.Since the design or interpretation of institutional elements depends on the target location of the system,this paper focuses on the analysis of the target orientation of the Obvious Unfairness System,sorts out the main academic views and practices related to this system in China,and investigates the similar or parallel systems in the norms of international uniform civil law existed in Germany and the U.S.A.On this basis,this paper believes that the goal of the Obvious Unfairness System can be oriented in two ways.One is to protect the party's autonomy of will,which shows the defect system,and the other is to work as the regulation system of the content of the civil juristic acts aiming at correcting the misconduct and maintaining the fair order.In China,the former point of view should be adopted.From the target location of this system,in the interpretation of the law,it should be considered that the subjective element should occupy the core position compared with the objective one in the Obvious Unfairness System.Therefore,when we apply the fairness system,the subjective requirements should be used as the main judgment basis while the objective requirements should be taken as a reference factor.
Keywords/Search Tags:the obvious unfairness rule, institutional goals, constituent elements, civil acts, defects in the declaration of intention
PDF Full Text Request
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