Abstract: The positioning of the system of “obvious unfairness” determines the direction of its hermeneutics. In comparative law, there are two modes the system of “obvious unfairness”: one dependent on public order and morals and one independent of public order and morals. As far as the Chinese civil law is concerned, the “obvious unfairness” system is different from the clause of public order and morals in terms of system position and legal effects. From the perspective of the technique of law application, the choice of the model that depends more on the “obvious unfairness” system than the principle of public order and morals is more conducive to guaranteeing the stability of law. Therefore, it is more appropriate to position the “obvious unfairness” system as a special finality provision independent of the principle of public order and morals. Based on this, in terms of hermeneutics, China should, on the one hand, make good use of the institutional space left by the system of “obvious unfairness” itself, and apply dynamic system thinking to increase its regulatory flexibility, so as to enable it to play the role of a general equity clause; and, on the other hand, sort out and summarized the existing cases, and expand their application to new types of contract.

Keywords: the Civil Code; obvious unfairness; public order and morals; profiteering; typification

The author of this article is an assistant research fellow at CASS Law Institute. This article is published in 4 (2021) Law Science.