Identification Of Operator’s Silence Fraud

In recent years,the cases of contract fraud disputes caused by silence fraud show an increasing trend year by year.Through the analysis of judicial practice,it is found that in the process of applying the constitutive elements of silent fraud,there are great differences in the specific identification standards of each element,mainly in four aspects:first,the identification standards of the actor’s obligation to inform are inconsistent;secondly,the identification standards of the actor’s violation of the obligation to inform constitute fraud are inconsistent;thirdly,the identification standards of intentional fraud are inconsistent;finally,there are different standards of causation in silent fraud.In the field of consumer protection law,there are different views on whether the interpretation of silent fraud should be consistent with the civil law,which makes it difficult to unify the identification standard of silent fraud in the implementation of consumer protection law.Through the analysis,it is found that the relationship between the actor’s violation of the duty of disclosure and the constituent elements of silent fraud is not completely corresponding,that is,not all violations of the duty of disclosure constitute fraud,not all violations of the duty of disclosure have fraud intent,and the criterion of "If there is,there is no." should not be adopted to judge the relationship between the relative person’s misunderstanding and fraud.In the case that the parties intentionally conceal the defects of the subject matter of the contract and violate the obligation to inform,the legal effects of several systems of silence fraud,such as contract cancellation,fault liability in contracting,guarantee liability for defects,infringement of the right to know,etc.,overlap.However,in practice,the court’s legal responsibility for deliberately concealing the defects of the subject matter of the contract is inconsistent.The root of this problem lies in the fact that the provisions of the obligation of disclosure in Chinese law are relatively general,and the judgment standard of the obligation of disclosure in different parts of the law is also different.However,it is found that the parties’ intentional concealment of the defects of the subject matter can lead to the establishment of silence fraud,contracting fault liability and infringement of the right to know at the same time.In this case,the evaluation of silent fraud should include the evaluation of contracting fault liability and infringement of the right to know;in the stage of contract performance,the legal consequences of silent fraud and defect guarantee liability overlap,so the parties should be given the right to choose freely,and the parties can choose to cancel the contract of silent fraud or rescind the contract of defect guarantee liability,so as to realize the relief The autonomy of human rights.It is generally believed that the principle of silence does not constitute fraud,unless the actor has the obligation to inform according to the law,the contract,the nature of the transaction and the principle of good faith.This paper holds that whether the actor has the obligation to inform should be judged by the court according to the trust,the importance of information,the defects of information,the unequal trading status and other factors.The judgment process is mainly divided into the following steps: first of all,the fraud should be based on the violation of the obligation to inform,with the criteria of "whether it affects the fundamental purpose of contracting","whether the problem is serious" and "whether it brings adverse effects to consumers" to investigate whether the violation of the obligation to inform constitutes fraud Secondly,the intention of fraud should be based on the standard of "whether it affects the fundamental purpose of the contract",and whether it conceals the true situation should be presumed to have the intention of fraud;thirdly,the causality requires the relative person to fall into the error as "the error of being used",and the perpetrator’s implementation of the fraud must have a "decisive influence" on the relative person;finally,it is necessary for the perpetrator to have a "decisive influence" on the relative person "Fraud" in Article 55 of the consumer protection law should be consistent with the interpretation of fraud in the civil law.In general,if the operator violates the obligation to inform and fails to reach the standard of affecting the fundamental purpose of the contract,it does not constitute fraud,but only constitutes an infringement of the consumer’s right to know.The above process is the judgment of silent fraud.