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Comment On The Motivation Error Of The System Of Significant Misconception

Posted on:2020-12-29Degree:MasterType:Thesis
Country:ChinaCandidate:Y ChenFull Text:PDF
GTID:2416330623953705Subject:Civil and commercial law
Abstract/Summary:PDF Full Text Request
The “error of expression of intention”,which aims to balance the autonomy of the expressive and the trust of the relative,is the core issue of the legal act.The current legislation in our country has not adopted the phrase of “error of expression of intention”,but instead uses “significant misconception”.Most scholars believe that“significant misconception” means the traditional “error of expression of intention”.However,under the background of the compilation of the Civil Code,due to the fact that provisions about “significant misconception” in our country are relatively broad,the view that “significant misconception” is the same as “error of expression of intention” has also been questioned.This thesis will first examine the theory of “error of expression of intention” and review the legitimacy of the dualism,and reflect on the possible explanations and obstacles of dualism in “significant misconception”.Then analyze the factors that be considered to determine whether error of expression of intention should be remedied and the most common problems in practice.Finally demonstrate the relief of motivation error in “significant misconception” from the perspective of interpretation,based on the needs of current regulations and judicial practice.The traditional theory of error of expression of intention can be traced back to Roman Law,determined by Savigny,and then developed by Zitelmann and finally stipulated in the “German Civil Code”.It has great influence on the formulation andinterpretation of rules about error in many countries of continental law system.The traditional theory of error of expression of intention is based on psychology,distinguishes error occurs during the process of formation and representation,that is motivation error and representation error.According to this theory,error occurs during formation(motivation error)is not subject to legal in principle,and error occurs during representation(representation error)should be subject to legal regulation.However,this kind of theory about error based on psychological is also facing some problems,so it has been questioned by many scholars,such as “the division of motivation error and representation error lacks legal legitimacy”,“distinguishing the motivation error and representation error is often difficult,even produces unreasonable results” and so on.Therefore,those who oppose the traditional theory about error advocate that the elements of whether the error should be subject to legal regulation should be regulated uniformly and the rules about error should be rebuilt.From the perspective of comparative law,in countries where the above-mentioned model of rules about error is not adopted,its legislation is comprehensively considered from the majority of error,cause of relative and subjective state of the expressive.However,the clearer the definition of the error,the higher the legal stability,and the less likely the doubt of the application of law.Dualism concretizes the abstract concept of “error of expression of intention” by means of typology,which provides a clear idea and a convenient way to solve the problem of error.The analysis of any problems should not be separated from specific legislation of the country.According to the establishment history of “significant misconception”and the meaning of article 71 of “Opinions on the general principles of the civil law”,“significant misconception” in our country should still be interpreted under the framework of dualism,but monism also should not be ignored.On the basis of adhering to the dualism,and with reference to the monism,motivation error constitutes significant misconception should satisfy: First,the motivation error must be “significant”,that is,subjective and objective causality should exist,and the motivation has special legal significance for the expression of intention.Secondly,there is no trust or low degree of trust worthy to protect the relative,to be specific,there are three situations,that is,the relative unintentionally cause the error,the relative is aware of the motivation error,and the relative is not aware of the error,but the error is extremely obvious.In this sense,monism and dualism are not opposed,but rather complement each other.In the whole rules about error,what is more important is how to deal with the nature error,computational error and bilateral motivation error that account for the majority of problems about error in practice.On the basis of sorting out the traditional theories and focusing on the specific provisions of our country,it should be considered that:In the nature error,first of all,the nature of a person or object should be understood more broadly.To be specific,“personal qualification” refers to the person involved and the third party,whose qualification includes all the characteristics that constitute the characteristics of a person for a certain period of time.The object here may be tangible,intangible or a legal act.And the nature of the object refers not only to its natural nature,but also to any other factual or legal relationship affecting its use or value.Whether the nature of a person or object is significant in a transaction should be considered concretely and objectively.Secondly,there is a crossover between the nature error and the identity error.In the cases where the nature does not enter the effect intention,if it is important in transaction,nature error should be considered as the significant motivation error in law,and then affect the effect of the intention.Finally,based on the particularity of rules about significant misconception and flaw guarantee in China,there is no risk of making flaw guarantee rules meaningless when the expressive claims revocation based on the nature error.Therefore,there may be concurrence between significant misconception and flaw guarantee rules.Computational error distinguish between hidden and public.In the hidden computational error,if the relative does not know and cannot know the error,computational error is without remedy;if the relative knows or does not know but the error is extremely obvious and the relative's trust weakened,the computational error can be remedied.In the public computational error,if the basis of calculation isconsidered to be the content of the contract through objective interpretation,and the content of the expression can be determined according to the interpretation of the intention,then the principle of "inaccurate record does not affect true intention" is applied,and there is no error.On the other hand,if the content of the expression cannot be determined according to the interpretation of the intention,the legal act will not be established due to internal contradictions.In bilateral motivation error,both parties should take risks of error.When the wrong assumption of the parties constitutes the basis of legal act,the bilateral motivation error is of legal significance and should be remedied.The current legislation in our country has not clearly stipulated the theory of the lack of basis of behavior,and there is a big difference between the significant misconception in our country and the rules about error in German law in terms of the liability for damages after the revocation,so there is a certain space to deal with bilateral motivation error under the framework of significant misconception in our country.
Keywords/Search Tags:Autonomy, Trust protection, Error of expression of intention, Motivation error, Relief
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