“动态体系论”在显失公平规则中的适用

The Application of “Dynamic System Theory” to the Rule of Apparent Unfairness

摘要: 显失公平规则最早规定在我国的《民法通则》，其采用的是乘人之危与显失公平并立的立法模式。我国《民法典》对显失公平规则进行了全新的规定，主要存在于两个方面：一是乘人之危与显失公平合二为一统称为显失公平；二是改变显失公平规则的法律效果。我国司法实务中业已形成了单纯以客观利益为标准的单一形态，而我国《民法典》采用的主、客观双重的二元构成要件的立法安排，从司法实务的角度来看其割裂了我国之前的原始实务积累；从比较法的角度来看，大陆法系和英美法系都出现弱化主观要件的倾向。基于以上两个方面，为了回应显失公平规则在我国司法实践中的积累以及发展趋势，在具体适用显失公平规则时应该采用动态体系论。

Abstract: The earliest provision of the rule of obvious unfairness is in China’s “General Principles of Civil Law”, which adopts the legislative model of taking advantage of people’s dangers and obvious unfairness. China’s Civil Code has completely new provisions on the rule of obvious unfairness, which mainly exist in two aspects: firstly, taking advantage of people’s dangers and manifest unfairness are combined into one, collectively known as apparent unfairness; secondly, changing the legal effect of the clearly unfair rule. In China’s judicial practice, a single form has been formed that is purely based on objective interests, and the legislative arrangement of subjective and objective dual elements adopted in China’s Civil Code has severed China’s previous original practice accumulation from the perspective of judicial practice; from a comparative law perspective, both Civil Law System and Common Law System tend to weaken the subjective element. Based on the above two aspects, in order to respond to the accumulation and development trend of the obvious unfairness rule in China’s judicial practice, the dynamic system theory should be adopted in the specific application of the manifest unfairness rule.