Research On Legal Issues Of Silent Fraud

Contrary to positive fraud, silent fraud is a kind of fraud caused by positivebehavior,which means silence constitutes fraud and this scope has been little explored.In the civil law system and the common law system, the insights about the silencecould constitute fraud is convergence: in principle, silence can not constitute fraud,but in exceptional circumstances may constitute. Even silence can constitute fraud hasbecame an indisputable fact, but in any case continue to consure that, there is aconsiderable debate in the two legal systems, the reason for the debate is from whenthe parties should liable for the inform obligation directly.In special cases, the academia determine identifiy silence constitutes fraud ismainly determined by one party breach the inform obligation, but which specific caseis special case, namely how to identify the existence of inform obligation, often stopat the principle of the good faith. If just stop at the principle of good faith, onlythrough the uncertain outline terms and law concepts to determine the scope ofinform obligation, such an operation is difficult to guide judicial practice, both cannot be an accurate expectation for the transaction parties. In the frame of the contractlegal relationship, explore the legal issues relate to silent fraud, discuss the legal basis,content and scope about inform obligation which relate to silent fraud, in order toarise enough attention about silent fraud in jurisprudence and judicial practice,hopehave some help for the theory of silent fraud and the judicial practice.The comparative law analysis is the main research method applied in thethesis.Through read and analysis the domestic and overseas scholar’s views andjudicial practices, draw a preliminary conclusion. In addition to the preface and theperoration, the main part of this thesis is divided into four chapters The anticipateinnovation of the thesis is:(1) Based on define the concept relate to silence fraud, onthe, focuse explore how silent can constitute fraud, and how to identify silence fraud,then summarize the definition of silent fraud.(2) Based on a detailed analysis of thedomestic scholar’s research on silent fraud, card the development context of thescholars view of approve and identify silent fraud,draw a conclusion that the most of scholars approve fraud have two types,namely the negative fraud and the positivefraud. The negative fraud refers to conceal the truth deliberately,and then constitutefraud is summarize the defence sudject on silent can not constitute fraud.(3)Throughthe perspective of inform obligation, comprehensive analysis the relative person’sprofessional competence impact on identify silent fraud, consider that the legalprinciple of good faith and the information asymmetry in economic terms are thetheoretical basis to identify silent fraud,and then discover the legal basis of silentfraud.(4)Generalize the defects of silent fraud system,point out that need improvelegislation about the applicable of inform obligation when signing a contract clarifythat the inform obligation should not be neglected in the process of drafting the civillaw,and provide ome useful suggestions to improve silent fraud system.