显失公平与乘人之危的现实困境与制度重构

The Realistic Difficulties and System Reconstruction of Unconscionability and Position of Vulnerability

对于一方利用其优势致使给付显著失衡的现象,德国法上的暴利行为与美国法上的显失公平规则所持的主、客观要素综合评价的观点代表了比较法上的发展趋势。我国《民法通则》虽开创了显失公平与乘人之危分立的立法例,但两者各自的适用范围不仅未臻明确,反而出现相互重叠的现象,并未达到立法者预设的目标。乘人之危不足以成为意思表示瑕疵的独立类型,其规范功能可分别被显失公平与胁迫所涵盖。我国未来民法典总则应当废除乘人之危,确立兼有主客观要件的显失公平制度,以凸显该制度保障意思自决原则兼及给付等价原则的目的。

To tackle the situation that one party vantages, comprehensive evaluation of subjective and significantly imbalance payment by taking its ad- objective elements that bolstered by the profitee- ring of German law and the unconscionability rule of American law represents a dominant viewpoint in the development of the Comparative Law. Though the Civil Law has acted as a starter to part unconscio- nability with position of vulnerability, their application scope remains unclear with some contents repeat- ed and fails to reach the expectation. Position of vulnerability is unable to become an individual part of insufficiency of will and its normalization function has been covered by unconscionability and coercion. The coming general civil code of China should erase position of vulnerability and establish the system of unconscionability to further principle of autonomy and equivalent payment security.