Judicial Determination of Manifest Unfairness in a Contract—Taking Mr. Bao's Contract Dispute Protest Case As an Entry Point

Abstract

In practice, there are still differences in the judicial judgement of manifest injustice, the differences between the single element theory and the double element theory have not been completely eliminated after the promulgation and implementation of The Civil Code, and the practice of circumventing the double element by "non-general contract" has been developed, and there are also differences in the judicial application of the judgement of "serious imbalance of interests" and the choice of the point of time for judgement. The judgement of "serious imbalance of interests" and the choice of the point of time for judgement are also subject to divergence in judicial application. The judiciary should fully respect the principle of freedom of contract, maintain modesty in determining manifest injustice, adhere to situational judgement, abide by the principle of double materiality in the content of the judgement, and adopt a hierarchical thinking in the logic of the judgement.