The Positioning System And Legislative Reconstruction Of Position Of Vulnerability And Unconscionability

Distress by multiplication and unfair system is a product of contract justice, is the field of civil law to protect the other party to make legal action against another party’s wrongdoing while under the influence of special rules. In civil code compiling, the general part of civil code has become a top priority, the behavior of the law is the content of the general rules of civil law is very important and complicated. "The general principles of the civil law" and "contract law" to learn from the debt relations act for the former Yugoslavia, profiteering behavior into a crisis in the German civil law behavior by multiplication and unfair behavior shall be separately stipulated, but on its rationality is also questioned. At the same time, in theory and in judicial practice, about the distress was by behavior and show the components of the unfair behavior also there is a big controversy. General rules of civil law codification provides to comb and integrate these two system of legislation. How to a crisis by multiplication, show unfair and profiteering and similar system in comparison to choose and to give reasonable regulation, become a theoretical problem worthy to be discussed.The first part elaborates the danger by multiplication and show the historical evolution of the unfair system and the legislative cases of countries in the world, that is, from system of historical origin and development in the countries all over the world legislative cases examined.Need be take and show the originated from the Roman law of unfair "very loss rules", "very loss rules" gradually into the other countries, and is absorbed by the legal system of other countries, the most representative of "damage" contract of French law, German law"profiteering" and the method of "unfair". Danger is multiplication and unfair system in different historical periods of different legislative provisions, close relationship with era background, the economic environment changes.The second part analyzes the danger was multiply and unfair system problems. Begin from danger by multiplication and the legislative status quo of China’s current analysis reveals the component elements of unfair,for danger is a constitutive requirements, this paper discusses the theory put forward three kinds of views, to show the components of the unfair of controversy, namely a element and two elements, respectively from the theory and case. Secondly, this paper analysis reveals the unfair and the rationality of the two elements that should be show the constitutive requirements of unfair adopts the principle of the unity of both subjective and objective. Finally, on the elements in a crisis is square and show the applicability of unfair overlap. Need be take in meaning said defects system should not serve as a kind of independent type, lack of independence.The third part studies how to reconstruct a crisis by multiplication and unfair system problems. About profiteering, danger is multiply and show the trade-offs of unfair system, there are three kinds of opinions on theory. The first proposition is will be multiplication and danger show unfair back into the category of "profiteering": The second is proposed need be replaced by a show unfair; The third one is will be take actions into danger show forth unfair behavior. At present several recommendations, general rules of civil law scholars mostly also tend to be the third argument, which show unfair to absorb a crisis was by. Newly issued "the general civil law" the 151th is taking this position.Absorption need take actions and reconstruction after the unfair should be both subjective and objective elements, its legal effect can follow the contract law of the provisions of the unfair legal effect, "the general civil law" the 151th maintain show unfair behavior is revocable legal act of both position and no show unfair one of the parties enjoy the right to change "positive".