Study on the Principle of Reliance Protection in Private Law
|Course||Civil and Commercial Law|
|Keywords||Reliance Reliance protection Reliance protection principle Vertrauenshaftung Private Law|
Reliance protection is the premise and foundation to set up social order.Reliance protection principle is the social ethical element in constructing the private law system. With rapid development of economy, simple and convenient business trade creates increasing economic benefits to the commercial subjects while insecurity factors such as trading fraud and concealment emerge. In order to enhance the success of transaction and avoid too much cost relating to the determination of transaction reliability and feasibility, there is a requirement that trade security need to come to top one priority in terms of law. It is the necessity that reliance should be protected. For the sake of promoting the success ratio of transaction, reliance should be protected. The legislation and judicature should be guided by reliance protection principle.Modern civil law is on the base of Privatautonomie, yet Privatautonomie has a relationship with the concept of legal act which is the necessary means that Privatautonomie can be realized. The basic legal concepts of legal act and the act relating to law is the foundation of the paper. By analyzing the relationship between legal act and the act relating to law and discussing the orientation in private law system from legal behavior responsibility to Vertrauenshaftung, the conclusion is that reliance protection principle should be an independent basic private law principle with the deviation from private autonomy principle. This paper studies the basic principle of reliance protection principle, system constitution and the legal effect in order to summarize general applicable rules and establish the theoretical foundation for reliance protection principle as an independent principle of private law. Furthermore, the paper attempts to rebuild the system structure of positive reliance protection and negative reliance protection in Chinese private law system.Full text except the introduction is divided into six chapters.Chapter OneThis chapter studies the necessity and significance of reliance and reliance protection on the basis of definition of those fundamental research categories such as reliance, reliance protection, Vertrauenshaftung, reliance protection principle. Reliance in private law perspective is a concept which has a social ethical connotation because the existing social life can under control in terms of such general order. Protecting such kind of reliance can give the individual essential sense of security, expand the cooperation between people, save the cost of social activities and establish relatively stable social relation. Without reliance, the cost of interpersonal communication could be enlarged unlimitedly; meanwhile the legal relation may lead to great uncertainty. From the perspective of jurisprudence, the top priority is not only to figure out the faith in heart, but to act on the reliance which naturally changes the legal status of the parties. For regulating those kinds of consequences in law, there is an imperious requirement which is about how to carry on the system design and arrangement, simultaneously how to protect the legal status of the parties. Consequently, reliance is integrated from the subjective factors to objective factors. The function of reliance protection principle depends on its own rich connotation. The various of specific system in terms of reliance protection that is based on the common pursuit of value for protecting reliance leads to the possibility in which the new principle is independent of other legal principles.Chapter TwoThe main purpose of this chapter is the comparative study between Rechtsschein theory and estoppel theory by analyzing historical origin and developing pattern of two systems respectively. The Civil Law system selects Rechtsschein theory as a significant system for reliance protection for the sake of protecting transaction security where external legal relation is superior to the real legal status. It is a reflection of social relationships with the economic development of the20th century and also an inevitable trend for regulating social relations in law. The development of Rechtsschein theories is relevant to the origin of law history, the change of social development and economic enhancement. It originates from Gerewe of Roman law. By expanding application of the publicity idea, it has been permeated and revised by Zutun and theories on declaration of will etc. Estoppel theory in Common Law initiates from rule of exclusion in evidence law and then is to be applied in substantive law. Although there is prodigious discrepancy in terms of historical origin, purpose, function, legal thought and so forth, astonishing consistency with regard to system design, the applicable scope and legal function of them also provides the necessary premise of their intergradation.Chapter ThreeAs reliance protection principle plays a significant role in terms of private law system, it is independent legal principle in private law. Under the principle of private autonomy, the law focuses on the protection of the vested interests which is the top one priority. The purpose of reliance protection principle is to protect the third party who has faith on both real rights holder and ostensible facts caused by the other party. Legal systems with reliance protection principle pay special attention to transaction security such as civil subject law, law of agency, property law, law of obligation, marriage and family law, corporation law, law of negotiable instrument and so on and so forth. Reliance protection principle reflects not only the requirements of protecting transaction security but also the policy in the field of private law. The change of law policy is satisfied with the pursuit of justice and just. From the perspective of functional civil law basic principle, in the specific scenario, reliance protection principle can be the basis of legal interpretation. Reliance protection principle should be an independent principle of private law considering its significance of contents and wide application.Chapter FourThe independence of the reliance protection principle is discussed in this paper. By the definition of act with legal relevance, this chapter analyzes the topic why reliance protection principle and the principle of private autonomy is different. Reliance protection is based on the concept of act with legal relevance. Act with legal relevance is opposite to the concept of legal act, namely there is nothing about party’s declaration of intention, and its legal effect shall be prescribed by law directly. Moreover, it does not belong to legal act as it does not constitute a rule itself. It is legal effect which is based on the evaluation of law. The most fundamental discrepancy between act with legal relevance and legal act is that the essential attribute of legal act is establishment, modification or elimination of legal relationship. The reason why it takes legal effects results from the party who wants to get such effect, yet the legal effect of act with legal relevance is stated by law immediately. Consequently, there is a fundamental discrepancy in terms of legal liability between legal act and act with legal relevance, namely Vertrauenshaftung. On this basis, reliance protection principle is opposite to private autonomy, which is an independent principle in private law. Reliance protection is primarily a legally technical method, which aims at improving the stability of the transaction; meanwhile it has no legal ethics requirements. Reliance protection principles and the good faith principle are different in many aspects such as the basic meaning, values, scope, applicable requirements etc. Reliance protection is the product of legal technology in order to maintain transaction security; it has a clear and specific system performance in private law system. Its institutional support is controversial to the legal act and it has its own unique scope. Good faith principle requires the subject of civil activities to keep his promise, pay attention to credit with a strong moral tone. It is originally applicable to private autonomy area such as the performance of contract. It is closely related to the concept of legal act and its adjustment method has great limitations, which is very abstract. The reliance protection principle has the independent scope and effective way, which cannot be achieved by the good faith principle. Therefore it should be independent of the good faith principle.Chapter FiveThis chapter discusses the system structure of reliance protection. The requirements of reliance protection are the presence of appearance, real right holder’s imputability considerations, the good faith of the party, reasonable reliance, reliance investment and other elements. Exterior appearance is the basic element for its protection; meanwhile the appearance shows the external fact of its departure from the legal reality. Real rights holders is the party whose act causes the appearance of the formation of the facts, and it can be said that he is imputable for the appearance. Regarding the criteria for determining imputability, Canaris’ believes that the principle of risk is the priority because people who make a representation should be responsible for the risk. The author believes that the form the responsibility is the result of several elements, and the conclusion could not only be directly drawn from one party. We can draw Canaris’ view to consider the imputability.Chapter SixThe chapter aims at discussing the rebuilding of reliance protection principle and the specific construction system under such guidance. Firstly, we should establish the independent status of reliance protection principle in private law and design it under the civil code system in a proper manner. Secondly, the entire relevant reliance protection principle in our country will be discussed in two classification, namely positive reliance protection and negative reliance protection, which is to perfect the existing system that are not perfect and fulfill classification of reliance protection that is defective. Active reliance protection includes adult by estoppel under civil subject, bona fide acquisition, ostensible agency, creditor’s rights of apparent transfer system, etc. Passive reliance protection includes specific systems such as cancellation of inaccurate declaration of will, unauthorized agency, contracting negligence, etc. Characteristic of reliance protection system should be in an open manner and absorb systems with constitutive requirements of reliance protection gradually.