意思表示错误效力比较研究

意思表示错误应具有何种法律效力,因涉及表意人的意思自治与相对人合理信赖的风险分担,而成为民法中最为棘手的难点问题。各国立法对意思表示错误制度的效力设计,出现静态安全相对保护主义与动态安全相对保护主义两种立法方案。基于权利制衡的基本宗旨,可以得知静态安全相对保护的立法模式较为可采,但应辅之以表意人撤销权要件及损害赔偿责任等诸多限制。

Comparative Study on the Effect of Mistake of Expression

The mistake of expression system is always regarded as one of the most difficult issue in civil law. The main difficulty lies in ： under what circumstances can the party get rid of the contract. Therefore, the mistake of expression involves the legal affair such as how to assign the benefits between the party who has a mistake of expression （ static security） and the opposing party who has good faith （ dynamic security）. At present there are static security relative protection and dynamic security relative protection. This article setting out from the legal portrait theory, holds that the static security relative protection is more reasonable. Correspondingly in order to protect the party with good faith, the law must be strict with the requirements of revokation, and relax the requirements of damage compensation. Hereupon, this article puts forward proposals in future civil law.