The Construction Of Unconscionability In Chinese Civil Law System

The provisions of the General Principles of Civil Law on the Unconscionability are the result of the separation of the Profiteering in German Civil Law,which respectively stipulate taking advantage of other's difficulties and unconscionability,and give different legal effects,which is the innovation of the General Principles of Civil Law.In the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China and the Contract Law,the legislative mode of " taking advantage of other's difficulties and unconscionability " in the General Principles of Civil Law is continued.The elements of the two and the effect of the civil juristic ACTS are modified and supplemented.The concept and application of taking advantage of other's difficulties and unconscionability are defined,and the combination of them is regarded as the reason for the revocability of the civil juristic ACTS,and the contradiction of legislation also leads to the confusion of judicial practice.There have been many disputes about the choice of the legislative model of the Unconscionability,the constituent elements of the Unconscionability and the effect of the civil juristic ACTS in the academic circle,and there are also big differences in the views of all parties.The promulgation of the General Principles of Civil Code,the combination of unconscionability and taking advantage of other's difficulties and the establishment of dual elements make the Unconscionability have clearer regulations and applicable standards.Compared with the unconscionability,the composition of the rule of taking advantage of other's difficulties lacks independence,and its normative function can be replaced by the unconscionability and coercion respectively.The Unconscionability adopts the theory of double elements,which not only protects the balance of payment,but also strengthens the guarantee of autonomy of will.When identifying the unfair system,we can flexibly apply the Unconscionability to achieve the appropriateness of the legal effect through the cooperation of subjective and objective elements and the complementary mechanism.The Profiteering in German law is a specific form of the principle of public order and good custom.Different from the provisions of comparative law,there are still disputes on the principle of unfair upper position in China,and scholars have different opinions.From the point of view of legislative purpose,the legitimacy of obviously unfair denial of civil juristic ACTS effectiveness lies in the resultant force formed by autonomy of will and balance of payment.Whether it is the development trend of modern private law nearby or the system setting of the General Principles of Civil Code,it can be concluded that the Unconscionability is no longer committed to the principle of public order and good custom,nor the product of the principle of public order and good custom.It is more reasonable to understand it as a system to correct the defect of intention expression.In terms of the effect of civil juristic ACTS,showing tribute as one of the reasons for the revocability of civil juristic ACTS is conducive to the protection of the party's autonomy of will,and the cancellation of the "right to change" is also a great progress of the General Principles of Civil Code.