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The Research on the Effect of Expression of Will

Author: SunJingKe
Tutor: ZhangZuo
School: Chongqing University
Course: Civil and Commercial Law
Keywords: The expression of will Effect appearance Restrain legal act
CLC: D913
Type: Master's thesis
Year: 2009
Downloads: 200
Quote: 1
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Abstract

The legal act is the core concept of the civil law field, and the express of will is the basic factor of the legal act. The effect of legal act decided by the effect of express of will. The research on the express of will can’t avoid the relation to the legal act. In the past time, people thought that the express of will and the legal act are the same things. However, along with the research of civil law theories continuously, scholars have the same idea about this problem: There are fundamental differentiations between the two theories. Through my research on the differentiations, I founded that the express of will have the existence of space independently. The research on the effect also has special importance significance.As for meaning of the express of will, there exist three kinds of different views, including the view of behavior of express of will ,the view of the effect of mean and the view of meaning performance. The mainly scholars of our country support the view of behavior of express of will. However after analysis, the view of the effect of mean is more reasonable. The three views all announce“the inside meaning”and“outside express”, namely: subjective factors and objective factors. The scholars have the same opinions about“outside express”, but debating on subjective factors, concentrating on whether includes the purpose meaning or not. To my opinion, it is the essential factor.The form of the effectiveness include: valid, invalid, cancel and withdraw. The different effect appearances have different influences to the civil case and the person’s rights. Some of them have controlled by law, but there also exist some cases that didn’t have any legal effect, leading some right can’t be protect. In this part, the research on the express of will that can cancel is a new try. Contrast to the legal act which can cancel, there exist many differentiation, and will influence legal act in many way. The valid express of will can constitute one side legal act or both parties’ legal acts on different situations. The invalid express of will can’t constitute legal act, but may bring about some disadvantageous opposite person probably. In addition to very few cases affirming by the law, there lack the system of the law under many situations, reflecting on the protection of“trust benefits”.Pursuing the person’s“true meaning”is the highest value in the civil law field, and having important influence to the effect of express of will. The true meaning of both sides is the ideal state of legal act. However, in addition to the defect of language expression, there are also other factors lead that there usually exist the certain distance between the“expression”and“true meaning”. So pursuing the“true meaning”became the main mission of the research on legal act effect. To find the“true meaning”means to determine the“the purpose meaning”and“the effect meaning”, that the two of the main composing factors. To resolve this problem can not get away from the application of legal hermeneutics. There are some controversies in this theory. For example, in the pursuing of the true meaning, because of different emphasizing, there exist meaning doctrine and excretion doctrine. Putting more emphasis on the meaning of the heart is the meaning doctrine; putting more emphasis on to mean of expression is the expression doctrine. Otherwise, there also exists compromised doctrine, that according to the different situations, to adopt the meaning doctrine or the expression doctrine. In my opinion, the compromised doctrine is more reasonable, since it don’t disobey the private autonomy principle of the civil law, also being advantageous to problem’s resolve.

The Research on the Effect of Expression of Will

Abstract

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