On The Requirements Of The Justification Of Presumed Promise

In order to determine the systematic status and specific applicable conditions of presumed commitment,scholars have attempted to use analogies and extrapolation from similar concepts,but a unified understanding has not been formed.This directly leads to the difficulty in establishing the basis for the legitimacy of presumed commitment,and thus the disagreement over the specific applicable conditions of presumed commitment is the deep-rooted reason.The rationality of each justification for presumed commitment needs to be considered separately,and an analysis of the selection of "non-rational factors" and the structure of the applicable presumed commitment is one approach.However,if we do not analyze the basis for the legitimacy of presumed commitment from the deep level of value foundation,we still cannot avoid the traditional controversy over the priority between the presumed subjective intention and the determined objective rationality.The value foundations of the views such as the emergency rescue theory,the social equivalence theory,the transaction management theory,and the legal formulation theory all need to be considered,which means that we need to revise our perspective on the problem of presumed commitment.Presumed promises,victim promises,emergency avoidance,and assumed promises have conceptual similarities.By comparing these concepts,it can be seen that there is a distinction between subjective and objective positions in defining the concept of presumed promises.The subjective and objective positions in defining the concept indicate a theoretical disagreement: whether it is more correct to speculate on the will of the legal interest subject in the direction of their intent or to provide value proof for the assumed intent based on the values of society as a whole.The different aspects of presumed promises are also indicated by the theoretical differences: the emergency avoidance theory,social equivalence theory,transaction management theory,and legal drafting theory all construct a justification for the presumed promise from an objective perspective,but their value basis deserves further consideration;the victim promise extension theory,the respect for the legal interest balance theory,and the "allowed danger" theory based on the rationality of law interests are all questionable because they cannot prove why the assumed will can produce actual blocking of illegal effects.The concept of "subjectivity" focuses on the relationship between subjects and emphasizes the symbiosis,equality,and communication between self-subjects and object subjects,freeing itself from the traditional value basis of instrumental rationality and providing a more reliable legitimacy for the rules of presumed promises,as well as providing space for the free development of communicative rationality.The concept of "subjectivity" as a bottom-line value can provide guidance for the analysis and selection of specific elements of presumed promises: the victim has the ability to recognize and understand the reality of the promise;the legal interests that can be presumed and promised are property interests and life and health interests below serious injury.The matter to be dealt with is urgent;the perspective for determining presumed promises is a prior perspective,excluding the role of the legal interest subject’s post-intent.The actor can equally apply the rules of presumed promises for their own interests or for the interests of third parties;the presumed intentions of the legal interest subject can be inferred from external behaviors in the communication and personal characteristics of the victim.If the direction of the victim’s intention is unknown,an objective perspective can be used for examination.Social equivalence serves as an external limiting condition;the speculation of the legal interest subject’s will should be reasonable.The above elements play an important role in constructing rules in judging different types of presumed promises involving property interests,personality interests,and life and health interests.