Analysis On Concept And Functions Of Material Mistake

The purpose of private law autonomy is to enable everyone to establish,change or eliminate legal relations freely according to his own will.In this process,when the meaning expression is inconsistent due to its own reasons,an error occurs.In essence,the remedy of the error is to protect the free will of the parties concerned.However,when the withholds his expression of intention because of his own mistake,the interests of the recipients of the expression of intention also need to be protected,that is,the law must make a choice between the autonomy of will and the protection of others' trust interests.The major misunderstanding system in China is different from the error system in Anglo-American law,and there are many differences in the legislative mode,error type and remedy mode with the error system in German law.Although the system of major misunderstanding in China was initially adopted by the Soviet union as the medium,it was indirectly inherited from the wrong system of France,but in the years of practice and operation,on the one hand,it was gradually close to the wrong system of German civil law in its scope of application and mode of thinking,and gradually separated from the wrong system of France.On the other hand,in the process of operation,it has acquired a new characteristic that is different from that of the German and French error systems,that is,it does not distinguish between the error of motive and the error of expression,and takes the significance of the error,the severity of the damage,and the causal relationship between the fault and the damage as its constituent elements.The successive reception of our legislation is mixed and indirect,and it is not combined with the theoretical construction.The current "civil law" in Taiwan is the "civil code of the republic of China",which was amended and enacted by the legislative yuan of the national government on the basis of the draft law of the Qing dynasty.Therefore,this article around the great misunderstanding of our country and countries such as Germany,France and the Anglo-American law system of error of the relation and distinction between,intentions to build mode choice of error system in China to provide premise conditions based on the analysis of the serious misunderstanding system in our country,with Germany,France and the AngloAmerican law system countries such as comparative analysis of error system,clear the serious misunderstanding system and provides precondition for the construction of error system of our country.This paper starts with the concept of major misunderstanding and relevant legal provisions in our country,analyzes the function of major misunderstanding and its constituent elements through judicial cases,and compares the meaning expression error system in foreign laws,deeply studies the advantages and disadvantages of major misunderstanding in our country,and puts forward opinions from the perspective of legislation and judicial application.The first part first introduces the concept of major misunderstanding in China's law,starting from the legal provisions of major misunderstanding,combining different viewpoints of scholars,and finally focuses on the analysis of the difference between misunderstanding and error.Gross misunderstanding of our country is a unique concept,investigate its source material mistake first appeared in 1955 promulgated the “general draft civil law of the People's Republic of China” the provisions of article 44: “because of fraud,threat,or for a major misunderstanding of main content of contract law behavior,the claimant may request the people's court announced its invalid in part or in whole.”,our country mainly refer to the French civil code,civil code of Japan,the German civil code and the Russian civil code,at that time,France,Japan and Germany concepts used in the civil code provisions are wrong,and in 1922 the Russian civil code article 32 rules: due to fraud,duress,or by its agent malicious conspires with each other,or because of the misunderstanding of significant as legal act,may apply to the court to confirm its all or part of the legal line is invalid."The civil code of Soviet Russia refers to the draft of Russian civil law in 1913,as well as the civil codes of Germany,Sweden and France,which can be traced back to the civil law system.When China transplanted this concept,it made further restrictions in the legal provisions,forming the concept of Chinese characteristics--“major misunderstanding”.In the second part of the judicial practice in China's case,analysis function in the system of our country's serious misunderstanding,citing serious misunderstanding to apply for cancellation of typical cases,and then summarizes the constitutive requirements of gross misunderstanding in our country,and major types of misunderstanding,and the last will be big difference between misunderstandings and unfair,fraud,clarify its function in practice.This part accounts for larger proportion.Hu specific antique sale contract dispute,Wang's family Li in send a driver's license for Zhang died on the way to Beijing traffic accident damage compensation dispute,Li bought an area of about 180 square meters of second-hand house haunted case,due to the housing authority registration error secondhand building business contract dispute,according to the case of the above sentence,it can be seen in the judicial practice at present,our country court decided that strictly on major misunderstanding.Summarizes some rules,first of all,the representor misunderstandings must be significant,but not any misunderstanding can into the main content of the contract has been revoked,such as the fees paid for misunderstanding not generally considered a major misunderstanding,for lack of understanding of relevant technical background,lack of professional legal knowledge is usually difficult to be considered a major misunderstanding.Secondly,they should have a reasonable duty of care for the normal market risk and transaction price,which is not a major misunderstanding in the contract law.Finally,for those engaged in specific business activities for a long time,they should be considered to have a very clear,clear,comprehensive and detailed understanding of the relevant transactions,and the possible risks should be clearly judged and predicted.The third part compares the serious misunderstanding system in China and abroad said error system,first of all,to mean error system are summarized,including the concept of the said error summary,enumerate academia errors due to errors and motivation errors error dualism and monism,and then analyses the error system of the continental law system countries and Anglo-American law system.Major misunderstanding system in China is ultimately mean error said system from abroad,the mean error said system experienced three critical stages,the first phase of Roman law and Roman law recovery phase,this phase in contract,in the second stage period of modern natural law,proposed the concept of intention,the third stage "German civil code,legal behavior system,establishing the system of the said error.In the process of error formation,there are two kinds of errors: motive error and presentation error.The error of expression refers to the error in the process of the expression of intention,which is the inconsistency between the meaning and the expression caused by the ideographs 'misidentification or ignorance,and the error should be remedied.Motivational error refers to the agreement between ideographs 'intention and their expression.However,there are errors in the formation of ideographs,which belong to ideographs' inner activities.The principle of motivational error should not be remedied.On this basis,there are two views: wrong dualism and wrong monism.And our country's major misunderstanding belongs to the wrong monism.The fourth part,through the analysis and summary of China's major misunderstanding system and foreign meaning expression error system,redefines China's major misunderstandings,increases the types of major misunderstandings,expands the interpretation of major misunderstandings,brings some legal effect errors into the scope of remedies,and improves and complements their functions.Through the comparison and analysis of the above cases and the error system of intention expression in foreign countries,the major misunderstanding system in China is essentially unitary,that is,it does not distinguish between the error of motive and the error of law.Whether a major misunderstanding can be remedied mainly depends on whether the misunderstanding is "significant",the subjective state of the ideographic person and the relative person,whether the misunderstanding causes a major loss,and whether there is a causal relationship between the misunderstanding and the loss.Although China's major misunderstanding system is transplanted from abroad,without profound theoretical basis and judicial practice,but in combination with the current situation of our society,we cannot forcibly implant foreign error system,and selectively introduce foreign theories and rules that can be used for reference,so as to improve China's major misunderstanding system.