“法律不知有害”质疑

我国大多数学者认为对事实的不知无害,对法律的不知有害,因而实务中对法律错误一般不予以救济。但事实上,不管是在罗马法上,还是在当代的大陆法系和英美法系,大部分国家都会对部分法律错误予以救济。而在确定何种法律错误可予以救济时,应充分考量在特定情况下对表意人"知法推定"的合理性以及表意人与第三人之间的利益衡量。

Doubts about Being Liable for Ignorance of Law

Most scholars in our country hold that“ignorance of facts are not accountable while igno-rance of law is”. Therefore,in practice often no remedies will be granted for legal errors. Nevertheless,ac-cording to Roman law and in accordance with the contemporary Common law and Continental law,most countries will grant remedies for some legal errors. While in defining which legal errors can be granted with remedies,it is suggested to fully consider in specific circumstances the reasonableness of“assumption upon knowing of law”by the party’s manifestation of intentions as well as balance of interest between the party concerned and the third party.