A Major Misunderstanding Of The Applicable Dilemma And Solution Of The Unary Interpretation Path

The major misunderstanding provisions of the Civil Code only have a complete legal form without defining specific connotations,which cannot be directly applied to judicial practice,and its application depends on the construction of interpretation paths.The major misunderstanding is equivalent to the mistake in comparative law,which is the product of alienation in the process of drawing lessons from the Civil law of Soviet Russia.The interpretation of major misunderstandings should choose the perspective of “inconsistency between cognition and reality”without being limited to “inconsistency between meaning and expression”.This is the result of multi-dimensional considerations from the structure of style,the system itself,the application of law,and the expression of terms.The existing unitary interpretation path of the provision is based on the contract,focusing only on the “representation of the intent to be accepted”,ignoring the “representation of the intent that is not required to be accepted”such as the will,which leads to the judicial application dilemma.The root cause is that the main purpose of the major misunderstanding contract is to seek the balance between autonomy of will and protection of trust,and the major misunderstanding of the will focuses on exploring the testator's true intention without the necessity of the counterpart's trust protection.To properly resolve the general application of major misunderstandings,it is necessary to reconstruct the interpretation approach of major misunderstandings on the basis of discriminating and drawing lessons from foreign relevant systems,forming a dual interpretation path of major misunderstanding of contracts and major misunderstandings of wills.To realize the dual interpretation path of major misunderstandings,the specific applicable rules of major misunderstanding contracts must be determined first,which is also the logical premise for the proper application of major misunderstanding wills.The constitutive elements are the concrete criteria for identifying major misunderstanding contracts that can be remedied.The major misunderstanding contract is based on the premise that the civil legal act has been established,marked by the unintentional misunderstanding of the ideographer,and pays special attention to the judgment of the core element of error “materiality”,that is,the standard of subjective and objective causality.However,the gross negligence of the ideologist and the risk distribution of major misunderstanding will hinder its remedy,and the counterpart factor will also have an impact.Of course,the contract of major misunderstanding that can be remedied is revocable,and the right of revocation should be granted to the person who expresses it,or to the counterpart in the case of common mistakes.After the cancellation of this contract,the ideographer shall be liable for trust damages,and if the counterpart causes a major misunderstanding,the counterpart shall be held responsible according to the degree of fault.The rationality of abandoning changeable relief of major misunderstanding is doubtful,and the legal effect of this remedy is better under specific circumstances,especially in the case of common mistakes.The specific application of major misunderstanding will should take into account both the generality of the application of major misunderstanding contract and its own particularity.Different from the normative interpretation of contracts,the interpretation of wills follows the approach of natural interpretation,with literal interpretation as the core,supplemented by system interpretation and purpose interpretation.If the interpretation of the will cannot correct the error,it is necessary to resort to the remedy rules of the major misunderstanding of the will.To judge the “materiality” of a major misunderstanding will that can be remedy,one only needs to pay attention to the testator's subjective materiality,without attaching the objective materiality standard.The testator's gross negligence can not prevent its remedy,and there is no problem of risk distribution and the influence of counterpart factors.The major misunderstandings of the will should also adopt revocable remedies,and there is no possibility of changing the application of remedies.The right of revocation should be granted to those directly interested in the revocation of the will,and may be granted to the legal representative of the testator when the testator loses the testamentary capacity and cannot be withdrawn,without reference to the testamentary heir,the legatee and the creditors of the decedent.The revocation period of the revocation right should be consistent with the general provisions to maintain the self-consistent nature of the system,and there is no issue of reliance damage compensation after revocation.