Factors Of Civil Rechtsschein Theory In Judicial Judgment

The rechtsschein theory was first proposed in the field of civil law,and then extended to the field of commercial law.Civil rechtsschein theory is the basis of the development of rechtsschein theory.As an exception of breaking through the traditional system of autonomy of will in civil law,the doctrine of civil appearance can make the legal act made by the bona fide third party relying on the appearance fact consistent with the legal act made in the real state,and its purpose is to protect the dynamic security.Based on the current situation of the judicial practice of civil appeasement,combined with the in-depth analysis of specific cases,this paper explores the application methods of civil appeasement in judicial judgment,which is divided into four parts:The first part introduces the basic theory of civil rechtsschein theory.First of all,it defines rechtsschein theory,and points out that civil rechtsschein theory is an important part of rechtsschein theory.Compared with commercial rechtsschein theory,it has its own characteristics in value orientation and application principles.Civil rechtsschein theory has the functions of coordinating the autonomy of the will and trust interests,balancing the interests of all parties and maintaining dynamic security.The second part,combined with specific cases,analyzes the application of civil appearance doctrine in specific system.The current law of our country only provides two kinds of concrete systems which embody the doctrine of civil appearance,namely,acquisition in good faith and agency by estoppel.The third part,combined with specific cases,analyzes the auxiliary application of civil appearance doctrine.Firstly,it introduces the connotation of auxiliary application of civil appearance doctrine,affirms its inevitability.Secondly,it expounds the legitimacy and rationality of auxiliary application of civil appearance doctrine by the embodiment and application of civil appearance doctrine in the assignment of creditor’s rights,marital property relations and compulsory execution.The fourth part is the exploration of the application of civil rechtsschein theory in judicial judgment.It is clear that the system of civil rechtsschein theory should be applied first,and when the rules can not be used,it should be applied as a supplementary way.At the same time,it summarizes the application rules of civil rechtsschein theory.Once the law makes clear and specific provisions on the application of civil rechtsschein theory in a certain field,then the specific system reflecting civil rechtsschein theory should be given priority in the judgment,excluding the auxiliary application of civil rechtsschein theory and general elements,and improving the system construction of civil rechtsschein theory in judicial application.