Research On The Determination Rules Of Apparently Unfair Conduct In Trial Practice

The obvious unfair system in civil law is a supplement to the principle of freedom of contract.Its purpose is to correct the obvious unfairness in the process of signing individual contracts and to maintain social justice and order.Article 59 of the General Principles of the Civil Law first stipulates a system of unfairness.It breaks the tradition of the civil law system and treats the unfairness and the danger of taking people as independent systems.However,due to the limitations of the historical economy,the provisions of the article on the system of unfairness are generally too principled and simple,and there is no specific expression of the concept,connotation and composition of the unfairness.At the same time,there is no clear definition of under what circumstances,for whom and for the scope of application.Article 54 of the Contract Law adds time requirements for “when the contract is concluded”,and makes certain amendments to the legal effect of the unfair system,but overall it still inherits the dual and three-dimensional system of unfairness and vicius.No fundamental improvement has been made to the above problems.In the academic world,the controversy over the apparently unfair system has always been large,and there are divergent issues surrounding the formation of the elements of the unfairness as a single element or two important parts,and how to determine the status of the unfairness in the entire private law system."Single elemental theory" believes that the apparently unfair rule only requires objectively that the rights and obligations of the parties are not equal,resulting in a serious imbalance of interests."Double important parts" thinks that in addition to the objective requirements,it also includes the subjective requirements of "one party has the advantage of using or using the other party to be rash,inexperienced,etc.".In the legislation,the legal norms concerning the apparently unfair system are unclear,and the understanding of the unfair system has not yet reached a consensus,which in turn affects the judicial judgment,which not only causes the abuse of the system by the contract parties in the trial practice,but also damages the contract.Seriousness and stability are also very easy for judges to cause excessive interference of public power in the field of private law,which constitutes an impact on the basic principles of private law.In this context,Article 151 of the 2017 General Principles of Civil Law stipulates the essential elements and legal effects of unfairness: “A party's use of the other party's state of distress and lack of judgment,etc.,causes civil legal acts to be established.If it is unfair,the injured party has the right to request the people's court or the arbitration institution to revoke it." The article has obvious changes in content than before,so that it can be revoked as a legal effect,including both subjective and objective elements,but It is not clear how the court determines the state of distress,lack of judgment,etc.,and whether it supports the discretion of the court.With the promulgation of the General Principles of Civil Law,the research on the system of explicit unfairness has also shifted from legislative reconstruction to legal interpretation.It is particularly important to properly apply the rules to derive legitimate legal effects.Obviously unfairness is one of the most frequently cited provisions in the disputes concerning the effectiveness of civil legal acts.The correct application of the provisions of Article 151 of the General Principles of Civil Law on the unfairness of the law depends on the absorption,adjustment and improvement of the previous relevant referee experience.What this article is going to explore is the rules for determining the unfair behavior in trial practice.Under the background of the promulgation of Article 151 of the General Principles of the Civil Law,the author based on the relevant cases of the Shanghai Court,summed up the elements of the court investigation in practice,and draws on the experience of the rules for identifying unfair behaviors outside the domain,comprehensive frontier theory and judicial practice.Three questions to discuss: What are the rules for determining unfair behavior in trial practice? The problem? And how to improve the rules for the identification of unfair behavior in China.