www.public4you.fora.pl

90nike5657fv

On the distribution and appearance of the transaction risk legal doctrine

Paper Keywords: civil and commercial law transaction security transaction risk the appearance of the allocation of risk doctrine Abstract: Distribution of the risks of trading has been in a legal doctrine with the appearance of the fragmented state of theoretical research on the association between the two very necessary, the use of economics, sociology, law and other research method for analysis. The results show that: transaction risk and trading activities attendant, is the product of market transactions; commercial law as a market economy, the Basic Law, to the risks of market transactions, a reasonable allocation; rational allocation principle is to protect the interests of relative security and transactions; appearance of the doctrine as a kind of commercial transactions identified the effectiveness of the method, a rational allocation of transaction risk is embodied. Finishing. 0 Introduction transaction risk and its distribution on the domestic issues of the study was conducted by the scholars of economics, there are few legal scholars involved in this issue. This makes the transaction risk and its allocation can not be implemented in the level of legal regulation. The appearance of Marxism as a method of commercial law,[link widoczny dla zalogowanych], commercial law scholars, although the concern has been, but in the course of the study the appearance of scholars have neglected the value of doctrine, that the allocation of risk in the transaction's unique role. Can be said that the risk in the trading system design and risk allocation issues, economics and law there is an interaction between the fragmented state. In order to solve this problem in theory, you need to look on the transaction legal doctrine in the context of risk and its distribution, economics, sociology and other methods of the relationship between the two in-depth study. 1 trading risk is inherent in market transactions the so-called risk refers to the possibility of loss or uncertainty of loss. Risk is the risk corresponding with the concept, if the danger is determined by external factors, the first man-made decision by the words of a given damage, risk refers to a certain extent, understanding and determination by the people decided loss. Transaction risk is the equality and mutual benefit and comply with legal and contractual obligations under the premise of the parties should bear the business risk. In some ways, the Civil and Commercial Law, in particular the existence of legal norms the contract is to provide for the risk of trading, making it able to predict the time of the transaction and avoid risks, while risk of loss of use of legal means to carry out relief. First of all, was born in trading activities within the risk itself. Along with the human decision-making and behavior, the risk of various social systems, particularly in the industrial system, legal system, the use of science and technology such as the common result of normal operation. The modern society due to the natural Market risk is an essential byproduct of the transaction process, it is like a double-edged sword, one is to be carried out to promote trade opportunities; the other hand, the performance is also a form of transaction costs, is the embodiment of market externalities. As occurred in the modern market transactions between strangers, on the one hand the people in modern society based on consensus and the lack of trust; other hand, because the reality of modern mass production, coupled with the inevitable information asymmetry caused by a large number of speculative trading factors,[link widoczny dla zalogowanych], the risk has become a universal existence. Risk for the normal trading is a threat, so the business is a field in need of legal intervention. Second, the risk of objectivity in modern society. Transaction risk are mostly formed through the improper trading, but can not eliminate unfair trade. This is due to incomplete legal system risks. This system is important, but implementation of the system is to pay the cost. Posner will be to maximize this view, any rights that he even thought that behind all costs. When the cost of not paying enough, the law must be incomplete, resulting in the elimination of the risks and benefits system, the party aspect is weak. It is undeniable that modern society, the law is the main protector of the market economy the most,[link widoczny dla zalogowanych], while the modern legal system, civil and commercial law in the allocation of risks in the market transactions and relief play a central role. 2 deal with the risks and the relative distribution of the Protection of Civil and Commercial Law risk in the allocation of transactions with significant differences: in the field of civil transactions, transaction risk is often assigned to the perpetrator of the opposite party; in commercial areas, Transaction risk is often assigned to the actors themselves, to protect the interests of the relative. For example, in civil transactions, the buyer does not assume acceptance and inspection obligations; and in commercial transactions, in order to protect the buyer because the seller is not affected by silence or omission and the loss to buy the goods the buyer must verify whether the defects or whether the prevailing quality standards agreed or will timely notify the seller defects, or defective goods which will lose all rights arising. Business Law will be on the trading partners such as protection of transaction security protection. Modern times, with the civil life of the transition to commercial life, the traditional concept of transactions in the value and system design began to change. Civil and Commercial Law in the value of the concept there are significant differences, which result in civil and commercial transactions of different concerns. Mainly reflected the value of civil liberty, because civil society is a Meanwhile, the civil transactions to some extent by the constraints from the family, so get rid of this constraint, access to free trade has become the key to the process. However, the value of commercial law is different: compared with the value of civil law, commercial law, the value of a duality, that is, transaction security in the transaction between freedom and balance. First, in order to promote the operation of market transactions, the transaction must obtain sufficient degrees of freedom, because only in a state of full freedom of individuals to be able to play the enthusiasm of participants in each market. While the 19th century was the era of liberalism, the most popular, but on the important role of free trade, the Middle Ages it has been very well known. Business freedom is the cause of people have the freedom to choose what kind of business, it belongs to the economic survival of the basic rights or fundamental rights. Commercial business based on free indispensable for the modern state did not dare to be included in the strategy of ruling the country with people's natural rights. Business freedom is Free market economy is undoubtedly the cornerstone that makes both sides are trading goods and interests of their needs while increasing social benefits. Therefore, fast become the essential characteristics of business transactions and encourage the entire transaction has become the essence of commercial law lies. Second, although it can not deny that free trade in the modern foundation of market transactions, but at least in the form of transaction security gradually made more important than free trade status. Modern trade theory, trade order and the need for security is no security, no transactions will achieve freedom. Of course, in a sense, the security value is derived from the value of individual freedom came. Because the subject of individual freedom is not without flesh and blood but rather the collective emotional life of individuals, so the protection of personal safety is to protect the proper meaning of personal freedom. Hobbes once said: Modern social and economic transactions have shown a high degree of network, this is the performance of commercial transactions; the contrary, the civil transaction also maintained a The so-called security related to the transaction will success or failure Zhengyu Bo pointed out: In modern society, and grasp. Requirements of transaction security is the essence of risk transfer, that is, who should bear the risks of trading. degree of risk People on social development and the improvement of the level of awareness of risk and also tend to evidence of digestion, but inevitability of risk and make the risk of digestion often a risk transfer. The fact that the transfer of risk into the market over the social field of ethics is a matter of justice in transfer allocation process, when the law began to intervene. In comparison with the civil law, commercial law practice in the trading area of the appearance of Marxist methods to protect the trading interests of safety and relative [8]. 3 Rationalism and the appearance of the appearance of Approaches to the risk allocation method, also known as objectivism, is in civil, commercial transactions, the legislation requires the appearance of the perpetrator as a benchmark to determine its behavior to be generated the legal effect of the method. Appearance of the doctrine include the following: First, the meaning is inconsistent with the said order is correct; Secondly, the actor has said should be said that the burden of their responsibilities. States on the theory and practice in commercial law have recognized the existence of the appearance of Marxism: Marxism in Japan known as the appearance of Germany as the appearance of law, common law countries called estoppel. The logic of this method is: when the perpetrator once the means to express their transactions, the mean relative who has been in the hearts of some expectations, the meaning is expressed starting restraint from people who can no longer act in that meaning contrary to express their true meaning and go back or revoke the expressed meaning, to ensure that the expected relative realized. The reason of this method are as follows: First, the method produces the inevitable result of historical development, the method is mainly used for the identification of the effect of intention. Means that for the real actors or disputes arising from the States has always had two kinds of relevant laws and judgments based on that doctrine and that doctrine means. Meaning holds that the effect of legal acts shall be in accordance with the subjective meaning of a person who is determined, the perpetrator is not allowed to infer that the appearance. That is inconsistent with such meaning, the meaning of that principle is not valid; that doctrine is that the legal meaning than the perpetrator's subjective, it should determine its effect outside of that as one of the major under. Although inconsistent with that meaning, but that the appearance, meaning that in principle is still valid. Civil law tends to protect the interests of actors, focusing on meaning doctrine, meaning that is inconsistent with the principle invalid. By the appearance of commercial law doctrine (that ism), instead of meaning doctrine. From the judicial point of view, the former is called an objective interpretation of the latter as subjective interpretation. Meaning of Marxist doctrine and said sign of distinction is the effects. This result is true meaning from the mainstream of society began to retreat, and to protect the safety of the said transaction doctrine began to prevail. Second, civil, commercial transactions, meaning, or subjective interpretation of the doctrine of judicial practice in the encounter certain difficulties: First, the heart is not directly observe the state of mind, heart and the act is not the only and determine the association. Judge to identify a person's inner state, either as a clinical psychologist on the parties as psychological diagnosis, or appreciate others to carry out speculative. This will not only raise the operating costs of justice, increase the expenditure burden of the parties, will undermine free trade, against the wishes of the parties. Second, once went to court, the parties more likely to lie. The two sides will be out for the interests of the true meaning of their various different interpretations, which obstruct the work to identify and bring the uncertainty of actual results. However,[link widoczny dla zalogowanych], if the use of that doctrine or the objective interpretation, the advantage is obvious. Appearance of the doctrine can effectively curb the discretion of judges to protect the freedom of parties to the transaction. Especially in modern Western society since the Civil Society has been pursuing the separation of state and political achievements of the private life of freedom.
More articles related to topics：

[link widoczny dla zalogowanych]

[link widoczny dla zalogowanych]

[link widoczny dla zalogowanych]