重大误解民事行为研究
发布时间：2018-12-13 01:48
【摘要】：重大误解制度是以民法的意思自治原则、诚实信用原则为基础而设立。它在平衡意思自治、保护信赖利益、维护交易安全等多方面都发挥着重大的作用。当事人在合同的履行过程中时常发现自己的意思与表示不一致,所以以重大误解为由而申请变更和撤销已成立合同的案件数量近年来也一直持续不断。我国关于重大误解制度的立法存在定义不明、构成要件过于简单、相似法律制度易混淆等问题,难以在司法实践中对重大误解案件进行有效、明确地判断,造成了判案标准不一、裁判结果迥异的局面。另外,学界对于重大误解的概念以及内涵,认定及救济的各方面都有一定程度的争议。基于以上现状,对我国重大误解民事行为的研究具有理论和实践的双重意义。本文主要采用案例分析法、比较研究法、利益衡量法等方法对文章进行论述。最终想要达到的目的就是发现重大误解制度在司法实践中所遇到的问题,通过综合学习和研究获得相应的解决途径。总的来说,存在的问题主要包括以下几个方面:1.重大误解的概念表述与其内涵不统一;2.重大误解民事行为的类型太笼统、不够明确;3.重大误解民事行为的认定标准模糊,司法实践中难以统一意见;4.对重大误解民事行为的救济途径规定得过于简略。论文就是在这些问题的基础上来进行分析和比较的。首先,第一部分结合一些学者的观点和现行立法的具体规定,对我国重大误解的概念、类型进行一个全面的分析。通过这一部分的论述能够对我国的重大误解制度有一个较为广泛地、基础地了解。第二部分是重大误解的认定。这一部分也是在实践中得以最直接体现的部分。在这一部分中,主要通过法律解释的方法对我国现行法关于重大误解民事行为构成要件的规定进行分析,同时通过司法判例来体现出其缺陷、不足和可修正性。在前一部分的基础上,第三部分对重大误解民事行为的救济进行全面、深入的分析。主要希望能够对现行法进行全面的解释,并结合司法判例,将其优点和不足都清晰地体现出来。第四部分通过比较研究的方法对德国法上的错误制度进行学习和研究,再将其与我国的重大误解制度进行比较。之所以选择德国法进行比较,是因为其对我国立法有着深刻的影响且相关规定也较为成熟。通过比较,能够将我国现行立法的不足之处更加形象地表述出来。最后一部分就是在前面几部分的基础上,指出我国关于重大误解民事行为的立法所存在的缺陷和不足,司法实践中所存在的问题,以及今后的立法应该如何应对实践、如何回应社会的真实需要。
[Abstract]:The major misunderstanding system is based on the principle of autonomy of will and the principle of good faith in civil law. It plays an important role in balancing will autonomy, protecting trust interests and maintaining transaction security. During the performance of the contract, the parties often find that their intention is inconsistent with the expression, so the number of cases that apply for the modification and revocation of the established contract on the basis of major misunderstanding has been continuous in recent years. There are some problems in the legislation of the major misunderstanding system in our country, such as the definition is not clear, the constitution is too simple, the similar legal system is easy to be confused and so on, so it is difficult to judge the major misunderstanding cases effectively and clearly in the judicial practice. This has resulted in a situation in which the standard of adjudication is different and the result of the judgment is quite different. In addition, there is a certain degree of controversy about the concept and connotation of the major misunderstanding, the determination and relief of all aspects. Based on the above situation, it has both theoretical and practical significance for the study of major misunderstandings of civil acts in China. This article mainly uses the case analysis method, the comparative research method, the benefit measure method and so on method carries on the discussion to the article. The ultimate aim is to find out the problems encountered in the judicial practice of the major misunderstanding system and to obtain the corresponding solutions through comprehensive study and research. In general, the existing problems mainly include the following aspects: 1. The concept of major misunderstanding is not consistent with its connotation; 2. The types of major misunderstandings of civil acts are too general and not clear enough; 3. The identification standard of the major misunderstanding civil act is vague, it is difficult to unify the opinion in the judicial practice; 4. The remedies for major misunderstandings of civil acts are too simplistic. The paper is based on these problems to analyze and compare. First of all, the first part makes a comprehensive analysis of the concept and types of major misunderstandings in our country, combining the viewpoints of some scholars and the specific provisions of current legislation. Through the discussion of this part, we can have a broad and basic understanding of the major misunderstanding system in our country. The second part is the identification of major misunderstanding. This part is also the most direct embodiment in practice. In this part, mainly through the method of legal interpretation of the current law of our country on major misunderstandings of civil acts constitute elements of the analysis of the provisions, at the same time through judicial jurisprudence to reflect its defects, deficiencies and correctability. On the basis of the former part, the third part makes a comprehensive and in-depth analysis on the relief of the major misunderstandings of civil acts. It is hoped that the present law can be comprehensively interpreted and its advantages and disadvantages are clearly reflected in the judicial precedents. The fourth part studies and studies the wrong system in German law through the method of comparative study, and then compares it with the major misunderstanding system of our country. The reason why the German law is compared is that it has a profound influence on the legislation of our country and the relevant provisions are more mature. Through comparison, we can more vividly express the shortcomings of our current legislation. In the last part, on the basis of the previous parts, the author points out the defects and shortcomings of the legislation on the major misunderstandings of civil acts, the problems existing in the judicial practice, and how the future legislation should deal with the practice. How to respond to the real needs of society.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2375650
[Abstract]:The major misunderstanding system is based on the principle of autonomy of will and the principle of good faith in civil law. It plays an important role in balancing will autonomy, protecting trust interests and maintaining transaction security. During the performance of the contract, the parties often find that their intention is inconsistent with the expression, so the number of cases that apply for the modification and revocation of the established contract on the basis of major misunderstanding has been continuous in recent years. There are some problems in the legislation of the major misunderstanding system in our country, such as the definition is not clear, the constitution is too simple, the similar legal system is easy to be confused and so on, so it is difficult to judge the major misunderstanding cases effectively and clearly in the judicial practice. This has resulted in a situation in which the standard of adjudication is different and the result of the judgment is quite different. In addition, there is a certain degree of controversy about the concept and connotation of the major misunderstanding, the determination and relief of all aspects. Based on the above situation, it has both theoretical and practical significance for the study of major misunderstandings of civil acts in China. This article mainly uses the case analysis method, the comparative research method, the benefit measure method and so on method carries on the discussion to the article. The ultimate aim is to find out the problems encountered in the judicial practice of the major misunderstanding system and to obtain the corresponding solutions through comprehensive study and research. In general, the existing problems mainly include the following aspects: 1. The concept of major misunderstanding is not consistent with its connotation; 2. The types of major misunderstandings of civil acts are too general and not clear enough; 3. The identification standard of the major misunderstanding civil act is vague, it is difficult to unify the opinion in the judicial practice; 4. The remedies for major misunderstandings of civil acts are too simplistic. The paper is based on these problems to analyze and compare. First of all, the first part makes a comprehensive analysis of the concept and types of major misunderstandings in our country, combining the viewpoints of some scholars and the specific provisions of current legislation. Through the discussion of this part, we can have a broad and basic understanding of the major misunderstanding system in our country. The second part is the identification of major misunderstanding. This part is also the most direct embodiment in practice. In this part, mainly through the method of legal interpretation of the current law of our country on major misunderstandings of civil acts constitute elements of the analysis of the provisions, at the same time through judicial jurisprudence to reflect its defects, deficiencies and correctability. On the basis of the former part, the third part makes a comprehensive and in-depth analysis on the relief of the major misunderstandings of civil acts. It is hoped that the present law can be comprehensively interpreted and its advantages and disadvantages are clearly reflected in the judicial precedents. The fourth part studies and studies the wrong system in German law through the method of comparative study, and then compares it with the major misunderstanding system of our country. The reason why the German law is compared is that it has a profound influence on the legislation of our country and the relevant provisions are more mature. Through comparison, we can more vividly express the shortcomings of our current legislation. In the last part, on the basis of the previous parts, the author points out the defects and shortcomings of the legislation on the major misunderstandings of civil acts, the problems existing in the judicial practice, and how the future legislation should deal with the practice. How to respond to the real needs of society.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【共引文献】
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2 苗雨;论版权默示许可[D];西南政法大学;2013年
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