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fifth, the effective elements of civil legal acts
effective elements of civil law, including substantial elements and form elements.
Its substantial elements: (1) the actor has the appropriate civil capacity. (2) that the true meaning of the perpetrator. civil legal elements are expressed as mean behavior, therefore, it requires that the perpetrator's intention must be true, that means that the perpetrator must be voluntary, meaning that to be true. (3) is legal. civil legal act is legal does not mean there must be a legal basis, but that is not illegal, that is not against the law of mandatory regulation. is not illegal is legal. basis Contract Law and OK. the subject may be the subject of civil conduct is possible. the subject can not, that is the subject of civil conduct can not be achieved, civil behavior does not take effect. the subject of identification, which is the subject of specific, clear, such as rice, wheat can be To determine the grain is uncertain.
in the form of elements: in most cases, civil legal action as long as the elements to have real legal effect, but in some special cases, civil legal action must have the formal requirements only take effect.
[Difficulties Analysis] First, no capacity for civil conduct acts of force. The rules are as follows: (1) no capacity for civil conduct to accept compensation, gift, reward is effective, the act from the beginning, Of course effective, there is no question of its ratification guardian. (2) no capacity for civil conduct carried out by a small civil force. For example, the 9-year-old third-grade students, the use of pocket money given by the mother to the mall to buy a pencil, eraser behavior. (3) no capacity for civil conduct carried out by other civil invalid. other civil acts, by their guardian. In practice, the guardian of the person for civil conduct and other civil acts, to be ratified also occurred effect. For example, the 9-year-old pupils to give their students the pen acts as a birthday gift, ratified by the parents to take effect. The problem is that China's ratified human rights issues of their guardians. Here, the guardian of the ratification and the guardian of the limited capacity of the ratification of different, limited capacity on the behavior of ratification, is a supporting act, is to make the limited capacity of the effect of uncertain behavior by ratification place an effective force. but no capacity for civil conduct of acts of ratification, should not be regarded as supporting acts, but rather as agent behavior, because there is no capacity for civil conduct and other acts of misconduct have the meaning of meaning, the nature of their behavior is not valid behavior, rather than the effect of uncertain behavior.
Second, the limited capacity for civil conduct acts of force. The rules are as follows: (1) limited civil capacity to accept compensation, gift, reward effective behavior; (2) limit capacity for civil conduct undertaken by its ability to adapt to the civil force. here said their ability to adapt, should be based nature of the act, transaction amount, and the limited capacity of life to be found associated with the degree of respect. (3 ) limited capacity for civil conduct carried out by contract actions incompatible with their ability to effect pending. usually considered to restrict the capacity for civil conduct carried out involving the behavior of real property involving intellectual property rights, are identified as incompatible with their capacity . (4) limit the capacity for civil conduct undertaken by the unilateral act incompatible with its capacity, as null and void. For example, limited capacity for civil conduct carried out by the behavior of abandoned property, wills Xingwei not have effect. In this cases, the guardian does not exist to ratify the effectiveness of their behavior, otherwise, is not conducive to the interests of the special protection of minors.
Third, pay attention to civil registration in force. statutory registration of civil acts in general is to take effect, including marriage act, act of adoption, the company set behavior.
XVI invalid civil
1.
invalid concept of civil conduct is ineffective civil behavior of the lack of effective elements of civil law, no legal effect Civil Action.
invalid civil behavior are: (1) void ab initio, from the start of the act there is no legally binding. (2)
course invalid, a claim regardless of whether the parties, whether that no effect, either with or without court or arbitration body confirmed that the civil act is null and void. court or arbitration proceedings or arbitration proceedings in the confirmation of an existing only to confirm the facts only. (3) to determine invalid from the beginning to have no effect, since the facts do not make any effective.
invalid invalid all civil acts can be divided into parts of civil behavior and the civil action is invalid. part of the civil action is ineffective civil part of the civil legal acts do not have a valid element, the part of civil behavior is not effective, does not affect the validity of the other parts remain in force.
2. invalid type of civil invalid civil
can be divided into the following categories:
(1) the perpetrator does not have the capacity for civil conduct. no capacity for civil conduct themselves can implement a range of civil behavior, such as pure profit behavior and the behavior of small. Other conduct should be the legal representative agent, he can not be implemented. no civil capacity, the implementation of the civil action can not be implemented according to the law should be invalid.
limited capacity for civil conduct shall not be independently implemented in the civil action is invalid. limited civil capacity shall not be independently act to get permission to implement the legal representative for the effective civil; but have not been ratified by the civil legal representative is not a valid civil acts; limited capacity for civil conduct the implementation of unilateral acts there is no relative protection of the interests, it should be recognized that the civil invalid.
(2) means that not harm the national interests of the free and civil behavior. due to fraud, duress contract actions implemented, the results harm the national interests, the civil action is invalid. Here the reason why the contract is invalid because the damage to the national interest, if not harm national interest, only the existence of fraud or duress, the contract is not to be invalid, the contract should be revoked, This is to place special attention.
(3) malicious collusion are detrimental to the state, collective or a third party in civil actions. malicious mentioned here, is there a purpose motivated the parties intentional; said collusion means that there is collusion between the parties, should be particularly noted that, although many scholars in an academic that only malicious s interests before the civil action is invalid, damaging the collective interests or the interests of a third party should not be civil civil actions to be invalid, and should the civil action can be revoked, given the right to select the right people, author of the book also holds this view. But in the judicial exam, should use invalid said.
(4) to legally form of civil acts conceal illegitimate purposes, including the illegal purpose to achieve the implementation of the civil action disguised in order to achieve the purpose of unlawful conduct with a cover of another civil disguise the real civil.
[Difficulties Analysis] a legitimate form of cover up illegal the purpose of understanding how the effects of civil no. Here there are two civil behavior: First, the legal form rather than the true meaning of civil behavior; the second is the meaning that has real meaning and content of the civil law. form of legal civil act, by its non-party real intention not to have effect; meaning that the true and the contents of the civil law of course is invalid.
(5) damage to public interests of the civil society. Such acts include the act itself violates the public interest to restrict the rights of others or their own ability or capacity to act, and act in itself may not harm the public interest, but the conditions attached to harm the public interest.
(6) prohibition against the law or the civil action imposed. In civil identified whether the prohibition against the law or provisions of force, generally only need to prove that the objective fact that can be illegal, as this behavior is out of the intentional acts, negligence or ignorance of the law and whether the motive of the perpetrator illegal, in the do not ask.
(7) from the beginning objective can not be uncertain or subject to civil behavior. special attention, from the beginning of objective indicators can not or does not exist can not be achieved. If the sale of perpetual motion machine of the contract or the sale of lunar land contract. subsequently can not, or subjective can not, can not serve as the basis for the contract null and void. If the Housing contract is signed, the housing loss, but the sale of housing is still a valid contract.
3. civil act has been
the legal consequences of the nullification is confirmed as invalid after a civil act, the legal consequences of the following occurs: (1) return of property. If one acquisition, the acquiring party shall return to each other; if the two sides achieved, the parties returned. As for the return of property the scope of the principle of return to all. the other benefits of the property, regardless of whether the return of existence, in principle, must return the obligation to return the original number or the original price. If the original exists, should be returned to original, or should pay a price. If the original property damage, should be returned after the repair, or pay substantial compensation. If the person paid the money, in addition to the return of principal, but also should pay interest on bank interest rates. If the other benefit is that labor, or other intangible property can not be the interests of the return should be converted into some of the money be repaid. (2)
damages. the party at fault shall compensate the loss of the other party. Both sides at fault should bear their respective responsibilities. (3) income owned by the state, collective, or returned to the third. The two sides have conspired maliciously and civil damage the national interests of the collective or a third person, shall be recovered and made the property reverted to the State, collective, or returned to the third person. here said the two sides of the property obtained, should include the parties have made or agreed to obtain property.
[Difficulties Analysis] First, the confirmation is valid civil statute of limitations applicable to the problem. In China, the invalid confirmation does not apply in civil actions statute of limitations, but the resulting civil invalid return the original claim, claim for damages shall be applicable statute of limitations, statute of limitations should be recognized that the date is invalid
Second, the people's court can order its own initiative make a valid decision problem. If the contract between the parties is invalid, the parties do not advocate an invalid, and claims breach of contract, whether the people's court to make a valid decision on its own initiative, keep doubt. in accordance with Code of Civil Procedure principle, it seems that the people's court decision can not be made invalid, but should be aware that the Civil Procedure Law of the Appropriate Intervention for the principle of making it null and void ex officio the people's court ruling.
Third, the Mending of the civil invalid. no provision of law, according to German and Japanese law, null and void after the disappearance of civil behavior because, after the parties acknowledge that, in the void between the parties with the contents of the acts set up a new behavior the same. our judicial practice is not the recognition of the importance of party elements, or between the parties stressed that the behavior of a new behavior, after elimination of invalid reasons, the act or beginning to be valid, or recognized by the parties takes effect. such as the before the completion of construction projects to obtain the appropriate level of qualification, the parties dealt with the request in accordance with the contract invalid, not supported. before the end of the court debate, the rights to provide the certificate or to make registration procedures, effective security can be identified. However, consistent with the effective legal acts B elements, B will be confirmed as legal and made effective. not valid concept of civil conversion of the existing provisions of law no. but according to the relevant judicial practice, adopt the conversion invalid civil doctrine. usually the case, including: (1) According to the legal principle of property, such as property settings do not meet the elements, but in line with the other elements of civil legal act effectively, we may conclude other civil legal acts take effect. (2) invalid, the broker can be identified as the commercial agent. (3) late commitments as a new offer.
seventh, to change, may revoke the civil
1. to change, may revoke the concept of civil acts and types of < br> to change, may revoke the civil behavior is defined as the true perpetrator of intention, the law gives people the right to revoke ideographic civil behavior. This behavior can occur in civil acts of civil legal effect, but once the civil revocation is retroactive to be formed when the void; If the owner does not revoke or withdraw an outstanding during the year in the revocation of rights, the civil act as a valid civil.
can change, revoke civil behavior can be divided into the following categories:
( 1) the civil action due to a major misunderstanding.
(2) civil unconscionability. unconscionability refers to the dominance of one party or the use of their lack of experience by the other party, in violation of the principle of equal value, so that one cause significant adverse civil behavior. unconscionability applies only to introduce a market price of property, identity unconscionable behavior does not exist. subject to state pricing of property, does not apply unconscionability. because of the pricing behavior of state fair that does not exist problem, there is only legitimate question is not legitimate. In practice the market price of property, if it is obtained through the auction, there was no unconscionability, because the auction itself is a fair bidding mechanism. If it is through the store obtained by way of sale or exchange, there was no unconscionability issue. If the store or impurities, shoddy, which is a fraud, does not belong to unconscionability issue. If the store price error, the high-priced items marked as low price, which is a major misunderstanding the problem, not part of unconscionability issue. unconscionability identified, should the market price when the contract is standard, and can not fulfill the contract when the market price as the standard.
[Difficulties Analysis ] buy cheap free flow of people's heritage, whether it should be recognized as blatantly unfair, this, there are different views. One view is that full compliance with applicable conditions of unconscionability should be regarded as unconscionable; another view that the act under the trading habits, and not as obviously unfair. According to transaction practices, such acts because of the difficulty of proof, to not be deemed as unconscionable is appropriate.
(3) by fraud, coercion and implemented by and not harm the national interests of civil behavior.
(4) and implemented by the stress and harm the national interests of the non-civil behavior.
(5) position of vulnerability of the contract actions.
2. to change, may revoke Revocation of civil
can change, revoke civil party may request to change the civil or revoked: (1) revoke the right is the right man for its unilateral change or withdrawal means that the civil act has been established rights.
right to revoke the right in the nature of the formation. revoke revoke civil rights of people to notify the relative meaning of that person, but not relative agreement that can produce the effect of withdrawal of civil behavior. (2) revocation of a right of The subject matter must have legal provisions. revocation reasons, including fraud, coercion, position of vulnerability, major misunderstandings and unconscionability. (3) the right to revoke the exercise. revoke the right person who wishes to change or cancellation can be changed, may revoke the civil acts according to law made to a court or arbitration body to change or cancellation request. (4) The right to revoke the right of the party knew or should have known the cause for cancellation within 1 year does not exercise the right to revoke, withdraw the right to destroy. (5) to revoke the legal exercise of the right consequences. If the owner requests the revocation of the revocation of civil acts, the court or arbitration body to identify the claimant entitled to revocation of the right to revoke the decision should be made. civil revoked after the retroactive effect of its withdrawal at the start of the act eliminated. If requested the court to revoke the owner or the arbitration institution to modify the content of civil conduct the people's court or arbitration agencies to identify the claimant entitled to revocation of the right to change the decision should be made. (6) Civil actions against the revocation does not have the effect of bona fide third . If a high price due to fraud, sentenced to purchase one from the C ring, and grant B, and C after a cancellation between the civil behavior, but A and B can not be revoked pursuant to a gift between the behavior.
[ ,],[people, stress people, position of vulnerability to exercise right of revocation. Note that when the victim is a contract to perform the contract rather than the victims, because the discharge time is hard to say who is the victim, who may also become victims of fraud. In a major misunderstanding and obviously unfair situation, is entitled to revoke the right of the victim or the right of both phases are withdrawn, it remains controversial, a view that can only be withdrawn by the victims have the right, because in the case of a major misunderstanding always a party at fault; in the case of unconscionability, a party still subjective motivation, it can only be withdrawn by the victims have rights. The other view is that both sides enjoy the right of revocation on the grounds that the a major case of misunderstanding or unconscionability, the perpetrator is not malicious, just wrong, the law should allow people to correct their mistakes, especially should not tolerate people consciously correct their mistakes, that both sides enjoy the right of revocation. from China's provisions, both sides are entitled to revoke the right of the view seems to be confirmed.
second, civil revocation of the difference between behavior and breach of contract issues. states in terms of samples from the behavior, fraud, coercion, position of vulnerability, which was lost fair, a major misunderstanding as the civil action can be revoked, the other does not fulfill the contract or improper performance of the contract was breach. in the contract relationship, if there is fraud, duress, position of vulnerability, a major misunderstanding, obviously unfair situation, the perpetrator If you do not exercise the right to revoke the contract will remain in force, the actor claims breach of contract can be exercised. If the exercise of avoidance behavior on the damage caused, may claim damages, but the damages claim is not a breach of contract claim, but the fault liability claim.
third exercise of the right to revoke the problem. the right to exercise the withdrawal right must be included with litigation or other means, in theory, is controversial. a view that the right to revoke The exercise should be conducted with litigation on the grounds that the exercise of the right to revoke the grounds that fraud, duress, and unconscionability position of vulnerability, and whether those reasons established by the court to be determined, the use of litigation is conducive to maintaining the solemnity of civil resistance. alternative view is that the exercise of the right to revoke a way that is self-mode-based, that party can exercise autonomy in the exercise of autonomy under the case of disputes, litigation can be, so to facilitate the implementation of party autonomy, but also help save the parties the right to exercise judicial resources and the cost. Of course, the identity of behavior, such as dissolution of the marriage to remove the adoption, should be used litigation to preserve its seriousness. The current dominant view for the second view.
s Fourth, revocable revocation of civil rights and the creditor the right to revoke the distinction. (1) the right of the main difference. may be revoked in the revocation of civil rights, the rights of the principal for the acts of one or both parties. the right to revoke the rights of creditors subject to creditors, not the acts of the parties. (2) revocation of different reasons. may revoke civil revocation of reasons: fraud, duress, position of vulnerability, major misunderstandings and unconscionability. creditor the right to revoke revocation reasons: to reduce the debtor responsibility for damage to their property and creditor interests. (3) the exercise of rights in different ways. may be revoked in the revocation of civil rights, the exercise method to exercise autonomy, mainly in the case of a dispute only by way of litigation; exercise of the right to revoke the creditor can only be litigation. (4) different during the exercise of the right. may revoke the revocation of civil rights, since the right person knows or should have known the infringement of rights not exercised within 1 year, the revocation eliminate the right of the scheduled period 1 year. Apart from the creditor the right to revoke the right to know or should know their rights have been violated within 1 year from the date of extinction is not exercise outside, since the debtor's act is not 5 years from the date of exercise The right to revoke eliminated. 5 years for the scheduled period.
Fifth, the people's court may revoke the decision of civil behavior problems. the civil action that could be revoked, if the right people just claim to the court to change, and does not advocate withdrawal, the people's court can only make changes to the decision, not revocation of the decision. How do people claim the right to request changes to a very unreasonable, the people's court shall make reasonable changes to sentence according to law. If the parties advocating withdrawal, but withdrawal of both sides parties are not appropriate, the people's court's decision to make changes as appropriate.
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