Study On The Identification Of Settlement Error

Social life is diverse and complex.In the face of disputes,in addition to solving the problem through litigation,people have resorted to "private settlement" to reach a settlement agreement.Solving the problem through settlement has its natural advantages over suit.However,since the essence of settlement is a contract witch does not have the force of a suit,it is often a situation of backwardness where the two parties have reached a settlement agreement in life.About the settlement,the academic circles mainly study from the perspective of procedural law currently,and its theory is very mature.From the perspective of civil law,the study of settlement is mainly considered from its effect while the research on settlement error is often carried over.Settlement error has its own unique value,so this paper will discuss it specially.This paper is divided into five parts:The first part lays the foundation for the whole article.First,the case brought by the professor Wang Qianwei leads to the problem of settlement error.Then this part discusses the problem that the settlement should be classified as private law or public law.After that,this part introduces three common situations of settlement error:First,the legal documents on which the settlement is based are later found to be forged or altered,and the parties to the settlement will not be reconciled if they know that the documents are forged or altered.Secondly,the problem has been decided by the court,but the parties or one party are not aware of it Third,there is an error in the qualification of the other party or the important point of dispute.Finally,this part introduces the relationship between settlement error and general error.The second part mainly introduces the legislation and judicature of the countries and regions outside the region.In these extraterritorial laws,the French civil code,the Italian civil code,the civil code of the republic of Argentina set several provisions to stipulate the settlement error in detail;the German civil code only provides for the definition,validity and settlement error in article 779;the Japanese civil law although only stipulates the definition and validity of the settlement,the development of the theory and case is relatively mature;the civil law in Taiwan has made provisions for the settlement error in article 738;as a case law country,the United States has no provisions on the settlement error in the legislation,but the theory and case are very similar to the continental law system.The third part mainly introduces the present situation of legislation in our country,practical practice,and the provisions on settlement error in the four draft civil codes currently affecting the larger part of the civil code.The provisions of China’s substantive law on the settlement contract are only embodied in principle in article 128 of the contract law,witch does not offer a specific way to deal with the settlement,not to mention settlement error.In judicial practice,in this case,the judge most cancel the settlement contract.But the inconsistent of referee’s reason make the sentence chaotic of settlement error in the judiciary.The fourth part mainly introduces the scholars’ suggestions on the error in the settlement contract and the author’s plan.In this part,it is first mentioned that the necessity of legislation is considered by scholars.Then it shows the legislative proposals of the scholars.Finally,on the basis of summarizing the legislative proposals of the scholars,the author puts forward her own legislative plan.Considering that there is no legal provision at present,we can solve the problem of vacancy of the current legislation by the interpretation of the law.The fifth part is the conclusion of the article.This part summarizes the necessity of the existence of settlement errors in the settlement contract,and tries to give the author’s answer to the case proposed by Professor Wang Qianwei in the first part.