| Independence is the fundamental difference between human and objects.Everyone has the right to handle their own affairs according to his own will.A contract is the result of autonomy of will between the contracting parties.The protection of true expression of free will is significant in every private legal system.For the undue influence and other behaviors that interfere with the free will of others,contrary to the principle of autonomy,it cannot be neglected in every country,thus positive relief should be imposed.Common law and civil law have taken different paths to solve this problem and have developed different systems.Civil law system protects the autonomy of will by systems dealing with fraud,coercion,taking advantage of the other party's hardship and material mistake,while common law system protects infringed people by systems dealing with fraud,mistake and undue influence.Some methods overlap in the two systems,but also maintain their unique value and status.Undue influence is a peculiar system of Anglo-American law,which has a broad meaning and wide scope,including all behaviors that illegally interfere with the free will of contracting parties.It mainly reflects as exerting influence with a convert,moderate measure so that the irresistible pressure in spiritual and moral aspects infringes the other party's autonomous choice.Therefore,the law entitles the victim cancellation right to protect free will.At present,China's contract law does not recognize undue influence as a revocable cause of contract,and the existing defect system of declaration of intention is difficult to provide comprehensive relief.However in real life,it's a common phenomenon that one party abuses of trust relationship and infringes other party's free will,thus,the study of the doctrine of undue influence provides a comparative perspective to resolve practical problems and has certain enlightenment significance for codification of Chinese civil code.The first issue is the concept and institutional origin of undue influence.Undue influence is an uncertain legal concept with unclear intension and wide extension.It is the multiple meanings and abstractness of 'undue' and 'influence' that cause the hardship of clarifying its intension by way of definition.In the past century,British courts gradually deepened understanding of undue influence through concept,categorization and objective standard.Originating from British equity law,the doctrine of undue influence,in which the Lord Chancellor providing special protection according to the concept of equity and conscience for victims whose free will suffers undue influence from other party first appeared in the equity precedent Joy v.Bannister in 1617,intends to make up for the too narrow applicability of traditional duress theory.With the merger of equity law and common law,undue influence system fully entered into common law.In the groundbreaking precedent,Allcard v.Skinner in 1887,the viewpoint relating to types,applicable cases,relief measures and limitations presented by the court built the basic operation framework of the doctrine of undue influence,which has profound significance.Since then,through case law,undue influence gradually developed into an important doctrine widely applied in the fields such as contract,donation and inheritance.The second issue is the evolution of the theoretical basis of undue influence doctrine.The significance of exploring theoretical basis is to clearly analyze why the system was established.Moral Conscience theory in equity law,emphasizing that human behavior should accord with God's standard of goodness,is a strong religious view of equity and justice and contributes a great share in the generation of undue influence doctrine.As it is not in conformity with God's law to interfere in others'will and affects their self-determination,equity law,not allowing illegal behavior without relevant relief,thus created undue influence doctrine.However,the objectivity of Moral Conscience theory,absolutely based on divine law and rational law,was questioned all the time.After the Reformation,hardly did any person support Moral Conscience theory as the theoretical basis of undue influence doctrine.Kant's free will theory,as the second theoretical basis,clearly expounded the philosophical base for the courts involved in undue influence cases and breaking the freedom of contract.People are free and equal,and independence is the fundamental characteristic.Every person has the right to become master of himself,to be free from coercion arbitrarily imposed by others,to choose their own behaviors,and to act according to their own wills.Contract is a reflection of the contracting parties' free will agreement,which will be lost due to undue influence,and thus the effectiveness of the contracting behavior is influenced.Contractual justice theory,as the third theoretical basis,emphasizes the real consistency of agreement,protects the freedom of the contracting parties from undue influence or interference by others,and centers on substantial justice of contract,which reflect the value pursuit of the doctrine of undue influence.The third issue is the construction and operation of undue influence doctrine.This section takes the type analysis and identification of undue influence as an entry point,to clarify the concrete applicable circumstances of undue influence and respective rules applied thereof.First,based upon methods of proof,undue influence can be categorized into actual undue influence and presumed undue influence.The former does not require the existence of a trusting relationship,and the influenced party shall prove undue influence with actual evidence.That is,the contracting party harmed the opposite party's right to choose on its own and force it to enter into the contract by bullying,coercion,threatening to sue and withholding critical trading information.The latter is premised on a trusting relationship between the two parties.Based on the trusting relationship,the court directly presume that one party exerted undue influence upon the other party by abusing the trusting relationship,unless the accused party can make a rebuttal.Furthermore,according to whether it needs further proving that the trusting relationship is enough to influence or control the other party,presumed undue influence can be further categorized into absolute presumed undue influence and relative presumed undue influence.In essence,presumed undue influence serves to balance the burden of proof of the two parties and acts as a special protection for the influenced party who is in a trusting relationship and has difficulties in providing evidence.Second,in terms of the party that exerts undue influence,undue influence can be divided into that happens between two trading parties and that exerted by the third party.Undue influence exerted by the third party mainly happens in a tripartite legal relationship where there exists a creditor,a debtor and a guarantor,in which not only the general rules of undue influence is applied,but also the special rules concerning the third party.In British judicial practice,there's a growing integration between actual undue influence and duress,but the specific way of integration still remains to be determined.Presumed undue influence has the widest scope of application.Types of relationships that can establish presumed undue influence cannot be exhausted by case law,and in theory they are in the dynamic development.Undue influence by the third party is the one that has had the fastest development and richest theories in the past fifteen years in Britain.The constitutive requirements and application rules of different types of undue influence are gradually becoming clear,and British courts keep a very cautious attitude towards revoking a contract based on undue influence,which reflects their recognition and respect of the sanctity of a contract.The fourth issue is the legal effects of undue Influence,which include two levels:one is centered on the influenced party,one is revolved around subsequent contracts.Firstly,undue influence is one reason for revoking contracts,the aggrieved party is entitled within a reasonable period of time to request the court to revoke the contract.If the accused request to enforce the contract,the court shall not grant such request and supporting the aggrieved party to use undue influence as an excuse.When the contract is revoked,the contract shall be invalid from the formation,and the parties shall be restored to the condition before they entering into such a contract,including restitution.For those cannot be completely restored,the court adopts a flexible approach,i.e.as long as both parties can achieve real justice,it will not require the condition of both parties to be completely restored.This flexible approach provides the maximum relief to the aggrieved party.In terms of subsequent contracts,when the prior contract is revoked because of undue influence,whether or not the later contract signed by the same parties will be revoked as well,depends on their beheviours of signing the later contract.English courts usually take cautious attitudes to analyse this problem and not blindly extend the effect of prior contract to the subsequent contract.The fifth issue is the impact of undue influence doctrine in English law on the relevant systems of other countries.Undue influence and its related problems present two different paths in the Anglo-American law and civil law system.In other Anglo-American countries,their legal systems generally adopted English legal system because of the early colonial activities of the United Kingdom.Therefore,the effects of undue influence doctrine in these countries are mainly manifested as one-way radiation and influence.As a result,major Anglo-American countries generally directly establish undue influence doctrine in their own system,with coercion,fraud,mistake and so on as the cause of voidable contracts.Meanwhile,during the process of legal transplantation of undue influence doctrine,subject to specific national conditions and legal and cultural traditions,countries further develop this doctrine and apply certain rules with versatility.Therefore,the doctrine of undue influence shows a different pattern in the judicial practice in different countries.From the macro point of view,the common point of undue influence doctrine in Anglo-American legal system is the same status and the same legal effect.Undue influence is a part of the defect system of declaration of intention,with coercion,fraud and mistake in parallel,which the infringed party can cancel the contract.While the differences lie in the method of proof,the applicable circumstances and the specific rules of the case,which are the result of self-adjustment and internal absorption driving by different legal culture and social traditions.In civil law countries,undue influence doctrine shows a two-way impact characteristic.On the one hand,France,as the early codification country,provided inspiration and reference of the initial design of undue influence doctrine for English courts;on the other hand,the maturing doctrine of undue influence also had an indirect influence on civil law countries.Although they do not directly recognize undue influence doctrine,but more or less implied in the relevant system.For example,in a way,the application and type of undue influence are abstractly defined in unconscinonability?abuse of circumstances and so on.This suggests that civil law countries more or less noticed the problems involved undue influence,and adopted different approaches from Anglo-American countries because of tradtion of statute law.The undue influence doctrine also produced certain influence to Chinese law.In history,the term of undue influence was once regulated in the Draft Uniform Contract Law.It reflects that the unique value of undue influence doctrine was noticed by some scholars,though this term was ultimatedly deleted.Given the status quo of our relational society,undue influence doctrine provides inspiration in solving some practical problems.In the conclusion part,it discusses the inspiration of English undue influence doctrine for compiling China's civil code.We are witnessing the valuable chance of compiling China's civil code,and it's necessary to keep a tolerant attitude of exploiting the advantages as a post-codification nation,absorbing,then learning from,alien outstanding legislative work,and be inclusive as well as be open.Concerned undue influence doctrine is rooted in the Anglo-American legal system,completely incorporating this doctrine into our present legal system is unrealistic.Whereas,the inspiration of this doctrine in solving practical social problems can be realized in two ways:the first one is centered on legislation and the second one focuses on judicial practice.Specifically,during the process of compelling civil code,improve the present provisions of coercion by adding a miscellaneous provision,which regulated the situations of undue influence shall use the provisions of coercion.Then in judicial practice,Supreme People's Court establishes guidance cases to standardize judgment and prevent abuse of litigation.In general,given the value of undue influence doctrine,improving the existing provisions in our legal system with smaller legislative costs to response social reality and its inspiration on codification of Chinese civil code. |
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