The Research Of Unconscionability System

The unconscionability system has already existed,and there are already a large number of cases of adjudication in the field of judicial practice starting from article59 th of the General Principles of Civil Law,which is one of the main mechanisms affecting the effectiveness of civil legal acts.However,unlike today’s unconscionability system,the General Principles of Civil Law separate undue influence from apparent unfairness,which directly invalidates the effects of legal acts,while the latter attribute attribution to change or irrevocable.The General Provisions of Civil Code of October 1,2017 are formally implemented,of which article 151 th provides for a system of the unconscionability system that is not the same as the General Principles of Civil Law.On the one hand,this new provision responds to the unconscionability system of the part controversy,but it’s still difficult to operate.On the other hand,at present,the academic circles in our country pay less attention to the unconscionability system,lack of monographs to study the apparent unfair behavior,and the unconscionability system is an important system in the field of private law,which is of great significance to protect the interests of the vulnerable groups.Therefore,in the context of the formal implementation of the General Provisions of Civil Code,it is necessary to ensure the accurate application of article 151 th in various cases.However,the premise of accurate application is to accurately grasp the connotation of the unconscionability system,which requires a comprehensive and systematic definition of the unconscionability system.Based on this,this paper takesthe 151 th article of the General Provisions of Civil Code as the research object,mainly solves the following five problems: 1.The positioning problems of the unconscionability system;2.Definition of the source of legitimacy;3.Question of the application of subjective and objective elements;4.Identification of specific constituent elements;5.Discussion on the advantages and disadvantages of legal effect and exploration of outlet.The first chapter of this paper mainly solves the problem of the legitimacy source and system orientation of the unconscionability system.Because the unconscionability system can negate the effect of legal act by “withdrawing”,and the legitimate source of this function is the basis of supporting the existence of the unconscionability system,we must have a clear understanding of it before grasping the connotation of the unconscionability system.At the same time,on the basis of determining the source of legitimacy,the system orientation of the unconscionability system is helpful to deepen our understanding of the unconscionability system.The first chapter is divided into two sections.The first section mainly introduces the development of the unconscionability system,the unconscionability system has a long history,its origin in Roman law,through the development of the Middle Ages,has a profound impact on later generations,China is no exception.The second section draws the conclusion that “under the appearance of the principle of autonomy of meaning and the principle of fairness to ensure the normal operation of the system of unfair performance,there should be a deeper principle of public order and moral ”,and on this basis,the unconscionability system should be is the embodiment of article153,paragraph 2,of the General Provisions of Civil Code,reading “Invalidity of Civil legal act against public order and moral”.The second chapter of this paper mainly introduces the applicable relationship between the main and objective elements of the unconscionability system.Or in doubt:why should this chapter be preceded by the third chapter(identification of objective elements)and chapter fourth(identification of subjective elements)? It seems more in line with the general logic to introduce the specific constituent elements first,and to argue the applicable relationship between them.In fact,the third to fourth chapter is meaningful to the specific determination of the main and objective elements of the unconscionability system only if it is clear what the constituent elements make up the unconscionability system and the applicable relations between them are sorted out.Therefore,the second chapter first discusses the relationship between the main and objective elements.The second chapter is divided into four sections.In the first section,by drawing on the German “four-element Classification”,we propose that the constituent elements of China’s unconscionability system should be divided into four categories,such as “adverse situations such as the injured party being in a critical state or lacking judgment ability”,“utilizing intention”,“utilizing behavior” and “objective result of serious imbalance of rights and obligations”.In the second section,on the basis of analyzing the advantages and disadvantages of “double element saying” and “single element saying”,I have adopted the position of “double element”,that is,the determination of the apparent unfair legal act needs to examine the subjective and objective elements of the legal act at the same time.The third section introduces the compromise position on the dispute between “double element saying” and “single element saying”.The fourth section puts forward a point of view of this paper,because the unconscionability system in the actual operation of the process of producing such a proposition--when the subjective elements or objective elements of one party is highly adequate and the other party is not sufficient,the highly sufficient party can make up the insufficient party,so that the apparent unfairness can be finally identified? The answer should be affirmed.In the applicable relationship between the subjective and objective elements of the unconscionability system,we should adopt the “dual element”,and the determination of the main and objective elements should draw on the experience of German law and take the perspective of the whole investigation.The specific approach is in the case of “sufficient objective elements and insufficient subjective elements”,because subjective elements are often difficult to prove,the presumption of facts,with sufficient objective elements to presume the existence of insufficient subjective elements,in the “subjective elements of sufficient and objective elements are not sufficient” situation,because the objective elements are easy to prove only simply inadequate,the introduction of dynamic system theory allows sufficient subjective elements to make up for insufficient objective elements.The third chapter is the identification of the objective elements of the unconscionability system,which is divided into three sections.In the first section,this paper clearly points out that the “utilization behavior” is different from the“utilization intention”,the former refers to the obvious unfair legal act which has been objectively implemented,does not contain subjective factors,the latter refers to thesubjective malice of the beneficiary party.This leads to one question: Is there an“utilization" behavior that does not have “intention”? If it does not exist,what is the meaning of the distinction?I think it exists because it takes into account the situation where “gross negligence” takes advantage of the disadvantage of others.The second section shows that objective fairness criteria should be adopted to evaluate the objective results of serious imbalance of rights and obligations,and introduces specific evaluation methods such as “quantitative analysis method” and “qualitative analysis method”.Section III,in the second section,further introduces some quantitative norms which can be used as an evaluation of the unfairness of legal acts,and makes a special discussion on the reduction rules of breach of penalty and the avoidance of breach of penalty clauses.The fourth chapter is the identification of the subjective elements of the unconscionability system,a total of three sections.Section I indicates that in article151 of the General Provisions of Civil Code,the word “utilization” should be understood as “utilization of facts”,which contains two aspects of “conduct” and“utilization intention”,and which can be proved by the presumption of technology because “utilization intention” proves to be difficult in practice.The second section first defines the connotation of “critical state”,and then on the basis of the search case,lists the most typical four categories of the victim’s “critical state” and discusses them separately.The third section is similar to the second section,the first step is to define the connotation of “lack of judgment ability”,and to consumer contracts,labor contracts,commercial contracts and general civil contracts four types of contracts as the object,analyzing different understandings of the connotation of “lack of judgment ability” in specific situations.The fifth chapter is the discussion of the current legal effect of the unconscionability system,a total of two sections.The first section is the discussion of the advantages and disadvantages of deleting “right to change” in the General Provisions of Civil Code,and through argumentation and analysis,I prefer to retain the right of change.In the second section,in view of the fait accompli,this paper proposes “partial revocation”,and through the analysis that it is independent of the“right to change”,“partial revocation” can play the function of “right to change” in some cases.This section is then further presented that the limitations and specific conditions of use of “partial revocation” under the framework of the unconscionability system,and in the face of the fact that the scope of application of“partial revocation” is limited,I think that the basic principles of Civil Law can also be used as a substitute for the function of “right to change”,it tries to offset the adverse effects brought by the abolishment of “right of change” to the greatest extent within the framework of the existing law.Finally,in the conclusion part,this paper gives a focused answer to the five main viewpoints of the article.