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Analysis Of Major Misunderstanding

Posted on:2020-03-06Degree:MasterType:Thesis
Country:ChinaCandidate:J H MaoFull Text:PDF
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In practical judgments regarding major misunderstandings,although the outermost shell is always a major misunderstanding,its inherent essence is complex and the same type of case often has different judgments from different judges' perspective.The fundamental reason is that the current law in our country is not so rigorous that the referee has a reversal of what kind of mistakes can be revoked and what kind of mistakes should not be relieved.The dualism,which is mainly expressed in the traditional sense of the difference between motivation and error,has been quite solid in civil law thinking.However,the current law lacks a comprehensive system that can regulate and reconcile these two distinctions,especially the identification of motivational errors.There is indeed a contradiction between theory and practice.With the changes in social cognition and the continuous advancement of the law,lots of country has revised the debt law.The different legislative models for the major misunderstanding are constantly emerging,and Chinese scholars are also deeply affected.This is directly reflected on the General Principles of Civil Law in China.Because of the oversimplification of the major misunderstandings,various views are expressed in the interpretation.The most typical example is that in the major misunderstanding,scholars have carried out many in-depth studies on the errors in thestage of meaning formation and the stage of meaning expression,especially the various studies on monism and dualism of motivational errors are most active.Therefore,in this article,the author will start with the theoretical research of monism and dualism in the first part,clarifying the concept of motivative error,the development of the theory of dualism and the theory of monism,and then further rethinking the dualism to sum up where the monism theory complement the dualism.The second part is based on the analysis of the first part,and explores that another reason for choosing monism that has not been discussed by academics which is that how the normative theory which leaves the meaning of empiricism and expressionism will affect the choice of monism.This part will first introduce the normative theory of legal behavior,and then derive the meaning of the interpretation path attached to the position from the normative theory,and thus compare it with the monism to study whether the interpretation method is logically and realistically more concert with serious misunderstanding to make a decision.The third part of this article will start from a practical standpoint and discuss the operability and rationality of the serious misunderstanding system and whether it is more suitable for practice after choosing monism theory.
Keywords/Search Tags:Significant misunderstanding, Motivation mistake, Express mistake, act in the law
PDF Full Text Request
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