On The Recognition Criteria Of Unconscionability In Civil Law

Obvious unfairness originates from the "very loss system" which balances the freedom of contract and the justice of contract under the special social background,and fully interprets the value of law.Extraterritorial civil law has different provisions on manifest unfairness,and its underlying principles and pursuit of legal values are generally consistent,but each has its own emphasis,which leads to the adoption of elements of manifest unfairness in extraterritorial civil law.Under the guidance of the principle of good faith and equality,the legislation of obvious unfairness in China's civil law adopts the theory of dual elements of unity of subjective and objective,and stipulates the rule of displaying fairness in the General Principles of Civil Law.The first chapter of this paper makes a comparative analysis of the historical origin of apparent unfairness and the legislation of apparent unfairness abroad.The "extraordinary loss rule" is the earliest form of apparent unfairness;the "contract damage" system in French civil law is derived from the "extraordinary loss rule" and adopts the single element theory;the "windfall profit act" in German civil law not only considers the objective elements,but also incorporates the subjective elements into the legislation;the United States needs both procedural elements and substantive elements for apparent unfairness;"Civil law" also adopts the theory of double elements.Chapter two of this paper makes a jurisprudential analysis of apparent unfairness.Firstly,it introduces the value of law,including the value of justice,the value of ownership and the value of order.Secondly,it introduces the principles of good faith,equality,public order and good customs related to apparent unfairness.Finally,from the perspective of legal acts,we analyze the obvious unfairness,the unfreedom of the expression of intention,and compare the obvious unfairness with other legal acts,such as danger,fraud,coercion,major misunderstanding and change of circumstances.The third chapter of this paper focuses on the constitutional elements of obvious unfairness,and compares and analyses the subjective and objective constitutional elements.It also elaborates and analyses the disputes about the preservation and abolition of the obvious unfair elements and the disputes over the constitutive elements,and affirms the dual elements theory of the unification of subjective and objective elements.In the fourth chapter,after analyzing the case of "Home Company v.Senderui Company Contract Dispute" contained in the Bulletin of the Supreme People's Court,empirical research and comparative study are used to discuss in detail the criteria for identifying the obvious unfairness in China's civil law.Combining with academic theory and foreign legislation,this paper elaborates on the criteria and legal effects of the subjective and objective elements stipulated in Article 151 of the General Principles of Civil Law.