Application Of Default Rules In Judicial Decisions

The default rule is to select the designer to set the default options in the selection framework,use the default effect that parties tend to keep the default options unwilling to change when making decisions,and "presumably agree" to the default agreement when people choose not to choose.With the rapid development of the Internet,Internet shopping has approached people’s lives and has become an integral part.Through various software and platforms,we can buy what we want without leaving home.Internet service providers use the default rules in the "Service Agreement" to set "Privacy Policy","Cookie Technical Notes" and other default terms to collect and store our shopping traces,and use our information to guess users’ preferences and recommend similar products or Services reduce operating costs.The default rule has the unity of efficiency and effectiveness.Choosing a shopping method that does not choose provides us with sufficient time and space,but it informs people that it does not restrict or force them to make a choice.The consent mechanism covers the substantial non-conformity with equality in form.The disadvantages of the cost of equality and power imbalance make the use of rules in judicial decisions difficult.In order to better realize the function of the default rules,the mild paternalism as a middle road between liberalism and patriarchism proposed a reformation of the default rules and provided a new way for judicial use of the default rules.The first part of the article clarifies the basic theory of default rules,analyzes the feasibility and dilemma in judicial adjudication,and introduces it in two parts.The first part is based on the efficiency and effectiveness value of the default rules,the value of autonomy and social cooperation functions,and affirm the feasibility of the default rules in judicial decisions.The second part points out that the default rules cover the disadvantages of high costs and conflicts of rights caused by substantial inequality with formal equality,which makes them troubled in judicial application.In the second part of the article,in order to solve the conflicts of practice,the default rules were transformed from the two orientations of paternalism and individualism.The first is the patriarchal approach,which advocates government intervention and influences people’s choices to make decisions for people.However,the doctrine of harm,the theory of knowledge decentralization,and the theory of negotiation argue that paternalism undermines people’s autonomy of choice and questions this orientation.The second is the individualistic orientation,which advocates people’s freedom of choice,but people’s limited rationality will cause people to lose their welfare when making decisions.Therefore,the moderate paternalism as the middle road,also known as "liberal despotism",provides a way to reform the default rules.The third part of the article combines the theory of moderate paternalism with the default rules.The first level analyzes the concept and nature of moderate paternalism,affirming its theoretical neutrality.The second level,adhere to the moderate paternalistic social welfare value and autonomy value as the core transformation of the default rules,transformation of the default options to improve the welfare of the parties.The fourth part of the article is rooted in moderate paternalism and reshapes the default rules in judicial practice.When applying "consent",it can tilt its interests,make full use of information disclosure to play its prerequisite and relevance functions,and allow personalized refusal.And personalizing the application of default rules in practice.