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The Research On The Termination Institution Of Continuous Contract

Posted on:2012-10-05Degree:DoctorType:Dissertation
Country:ChinaCandidate:H ZhangFull Text:PDF
GTID:1116330371463321Subject:Science of Law
Abstract/Summary:PDF Full Text Request
Continuous contract and discrete contract are two basic types of contract, and this classification in the modern contract law is getting more and more attention, owing to the existence of differences in essential factors, features and the principles of law between discrete contract and continue contract. The termination institution of continues contract is particularly the most distinct one.Terminative function of continuous contract is similar to the rescission of discrete contract. They both aim to relieve contracts. In the Chinese Contract Law, they both are regulated by contract rescission institution. But our legislation tends to focus on discrete contract rather than continue contract, which has leaded to lacking of the studies regarding continue contract and inappropriate application in judicature. This paper holds that the arbitrary termination institution of continue contract should be both formulated separately in general principles of contract law and the all kinds of specific types continue contract, which is benefit for judges to invoke the appropriate rules of law to resolve judicial practice regarding continue contract.In the introduction, it has analyzed the distinction between termination of continue contract and the rescission of discrete contract on the basis of discussion about the distinction of the definitions between continue contract and discrete contract, which serves as the analysis foundation of the study in this paper. In addition, the instruction also reviews the full text content, significance and research methods.Essentially, continuous contract is regarded as a kind of uncertain contracts .It has three distinctive sets of basic features: the contract can not be determined from the beginning but to be extended and determined step by step; the contract is indefinite and depleted; contracting parties has a strong relationship of trust. Among the types of classification of termination about continuous contract, the most significant one is the legislative classification between non-termination and termination for the special nature of termination of continuous contract basing on its essence and basic features. The legitimate basis of non-arbitrary termination is lack of "good cause", while arbitrary termination base on the concept of "guarantee of personal freedom" and the "breach of fiduciary relation" . There are two main standard modes of the termination of continuous contract in civil law countries: one is the dual mode which combines the termination of contracts and the rescission of contracts, and the other is unitary mode of the rescission of contracts. The institutions concerning about the termination of continue contract in American law and English law in essence have utilized the dual model. The representation of dual mode of the termination of continue contract is German civil law, which has regulated separately the institutions of the arbitrary and non-arbitrary termination of continuous contract. On the other side the representations of dual mode of the termination of continuous contract are the Japanese civil law and the Chinese contract law , both of which only prescribe the problem of the termination of contracts in the rescission institution of contracts, but they emphasize the distinction of executable power. The future of contract law should adopt the dual mode which combines the termination of contracts and the rescission of contracts, and should establish the concept of the termination of continuous contract.Termination institution of continuous contract abstracts four structural elements of the termination: termination reasons, termination behaviors, and termination procedures and termination effectiveness. Especially, it analyzes the non-arbitrary and arbitrary termination of specific elements. In the problem of legal effectiveness about continuous contract termination system, this paper firstly analyzes the legal effectiveness about terminating a contract constituted theory of four theories and clarifies that'the Relationship of Liquidation'has the best explicative ability. On that basis, it discusses the termination system of continuous contract about legal effect.In the civil law system, the 314 th of civil law in German is the clearest one among every country on the legislation of the arbitrary termination about continuous contract, and it is worth of reference. Also, it analyses thoroughly the specific regulations of the 314th article, which centers on the arbitrary termination. Finally, it writes something about regulations resolved of continuous contract in Chinese Contract Law and points out the problems existed in the legislation in our country and the corresponding legislative suggestions.From a perspective of legal view, it analyses its particularity and the relationship whether it adhere to the principles of the contract. The legislators measure the interests among the concept of "pachta sunt servanda principle", " fiduciary theory" and "protection of personal freedom", which results in the legislative allocation of arbitrary termination right. From the aspect of legislation, the status of empowerment of the arbitrary termination system of continuous contracts is argued, which is based on the perspective of paid and unpaid, term inability and interminability, civil and commercial contracts as well as legislative policy. In addition, it also discusses the compensation for damages on the arbitrary termination right. Finally, the specific example of arbitrary termination right that commission contract arbitrary termination right is analyzed, which discusses the 410th item in Chinese contract law about the rule of commission contract arbitrary right, and points out the existing problems and suggestions about improving legislative in 410th item.To sum up, binary regulating mode that contract termination detaches from contract rescission should be used in Chinese Contract Law. Last but not the least, the system and regulations of contract rescission need to be rewritten thoroughly, the non-arbitrary and the arbitrary termination request to be ruled dividedly, and some existing regulations about contract arbitrary rescission are supposed to be amended.
Keywords/Search Tags:continuous contract, discrete contract, termination, rescission, non-arbitrary termination, arbitrary termination, pachta sunt servanda principle
PDF Full Text Request
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