As the second volume of a three-volume set that critically reviews typical civil cases in China, this book focuses on the importance of constitutive requirements of legal rules.
A legal rule consists of constitutive requirements and legal effects. The constitutive requirements should trigger specific legal effects and not lead to unintended consequences. If they do not, the application of a legal rule may not produce the desired result. Any change in the constitutive requirements should result in a corresponding change in the legal effects. A mismatch between the two can lead to unfairness and injustice. In the nine cases discussed in this volume, these principles were either seriously overlooked or given insufficient attention, with various negative consequences.
The book will appeal to scholars and students interested in China's civil litigation, civil law system and judicial reform, and comparative law.
1. Judges Should Abide by the Constitutive Requirement Stipulated by Law 2. Validity of Unentitled Disposition Contract, Unsafe Right of Defense, Termination, and Debt Assumption 3. No Arbitrary Deviation from or Misinterpretation of Legal Constitutive Requirements 4. It is not Allowed to Blindly Expand the Scope of Application of Paragraph 2, Article 44 of the Contract Law 5. Relationship and Interpretation between the Initial Contract and Subsequent Contracts 6. A Dissolving Condition is Different from Contract Dissolution 7. Application Order of the Defense Right of First-Performance 8. The Principle of Legal Impossibility and Clausula Rebus Sic Stantibus 9. Name and Trademark: Review of Path and Methodology
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