Discuss On Deliberate Misrepresentation

Deliberate misrepresentation refers to the messenger's intentional communication of intentional expressions that are inconsistent with the intentional person's expression,which is different from the messenger's unintentional communication of errors and "false messengers".The messenger's unintentional miscommunication and intentional misrepresentation are only different from the subjective state of the messenger,and the messenger lacks the authority of the expressive person in the case of "false messenger".The academic circles have no objection to the messenger's unintentional communication of the error and the situation of the "false messenger".The unintentional communication of the messenger is a kind of error,and the relevant provisions of the error are directly applicable.In the case of a “false messenger”,the “false messenger” lacked the authorization of the expressive person from the beginning,and the rule of no authorization should be applied by analogy.The appearance of mistake in communication is closely related to the development of the telegram.Article 120 of the German Civil Code only stipulates that "the person or institution used for communication performs false communication",and its constituent elements do not carry out the subjective state of the communication person.In particular,in the subsequent application of the law,in order to emphasize the punishment of the intentional messenger and avoid the excessive blame on the expressive person,the relevant case law use the purposive limiting methods to limit it,in other words,added "Commissioner's unintentional misinformation" was added to the constituent elements of transmission error,and the messenger's deliberate misrepresentation was excluded from the communication error.and it is said that the intentional misrepresentation shall be analogized to the relevant provisions of the unauthorised agency system.In addition to the dispute over the application of legal effects indeliberate misrepresentation,there are objections to the meaning of deliberate misrepresentation and the validity of deliberate misrepresentation.If the meaning of deliberate misrepresentation is considered to belong to the conveyer,and the meaning of the expressive person means that it has not reached the recipient,the meaning is invalid,and the conveyer shall bear the responsibility of unauthorized Agency.If it is considered that the intention belongs to actor,and a contract is established between the actor and the recipient,the item can be further subdivided into meaning effective and meaning effective to be determined.In the case where the intention becomes effective,the intention can be revoked due to a communication error.The intention to be determined is to consider the establishment of a contract of intent between the actor and the recipient.If the actor refuses to ratify,it means that there is no effect from the beginning,and the conveyer bears the responsibility of unauthorized Agency.There are two ways to explain the effect of deliberate misrepresentation.Path one(The mainstream view of German and China)believes that the conveyer intentionally conveys an error.At this time,the intentional expression does not belong to the actor.Even if the meaning indicates that it belongs to the actor,the actor should not be criticized and the conveyer should bear the responsibility.Under this path,scholars have concluded from the legislative thoughts of Article 120 of the German Civil Code that legislators only hope that the actor bears the typical risk of communication errors.Or from the concept of "error" and " Messenger",the application of communication error is negated.It is considered that the communication error only contains the unintentional meaning and the expression is inconsistent,and the messenger only refers to the person who conveys the meaning expression of others.Or from the measurement of the interest situation between the three,it is considered that the application of unauthorized agents is conducive to the recipient's protection of positive trust,is helpful to punish the communicator's malice,and reduces the responsibility of the actor.The second path further clarifies the legislator's original intention from the perspective of legislative history,and looks at the development of the principle of imputation from a dynamic perspective.The core of the two path disputes lies in the distribution of risk.This article starts with the attribution of risk,and explores the distribution of risk on deliberate misrepresentation.The determination of imputability can be considered from the following aspects.First,find out who has increased risk behavior.Those who increase risk should take responsibility for their own behavior.If the appointed conveyer conveys the intention.The actor uses the communicator as a tool for expressing the intention.It cannot enjoy the convenience brought by the messenger,but does not bear the risks brought by the use of the communicator.Second,consider who is better at controlling risks.Sometimes there is no risk-increasing behavior on both sides.At this time,it is necessary to consider who controls the risk to maximize the benefits.In the case of deliberate misinformation,the actor can select,instruct and supervise the conveyer more than the recipient,and it is more appropriate for the actor to control the risk of communication.In addition to behaviors that increase risk and are more conducive to controlling the occurrence of risks,it also includes who benefits more from risk behaviors,who is more likely to pass on risks(such as through insurance),and whether risks cannot be ruled out anyway.It follows that the risk of communication in deliberate misinformation should be assigned to the person who represents it.