Contract Right To Terminate The System

The inspiration of this essay originates from the author's concern about the incompatibility existed in the practice of China's current rescission right of contract. The essential purpose of this essay is to conduct the jurisprudential exploration, legislative research and comparative analysis of the rescission right of contract to figure out the systematic characteristics, evolving principles and developing trend of the rescission right of contract and then retrospect and review the rescission right of contract contained in China's current law system in order to probe the effective ways for its improvement and consummation. Pursuant to this purpose, the essay is divided into four parts for further analysis. Chapter One The General Theory of the Rescission Right of Contract Firstly, the first section of this chapter defines the connotation of the rescission right of contract and makes a type-oriented analysis about it, which draw up the researching scope for the following parts and serve as an analytic basis. Secondly, this part analyzes the determinant factors for the formation of the rescission right of contract, namely the object, subject and time. Thirdly, the legal attribute of the rescission right of contract is emphatically discussed. From the author's viewpoint, the rescission right of contract shall fall into the scope of right of formation in terms of its exercising effect but be deemed as a secondary right against the creditor's right. The second section of this chapter focuses on the dissertation of the systematic orientation of the rescission right of contract. The essay reviews this issue mainly from two different points of view. First, the orientation about the rescission right of contract in the overall layout of the civil law system. The essay holds that the rescission right of contract shall be covered by the contract effectiveness system in a broad sense. The reason for its distinction from other effectiveness systems and its independent status therefor lies in that the rescission right of contract is deemed as a sort of mechanism endowed by law to enable the parties to "escape" from the binding of the contractual relationship. This mechanism also varies among different types of the rescission right of contract. The consensual rescission right is a sort of mechanism in which the parties are allowed by law to "escape" from the binding of the contractual relationship pursuant to their own agreed conditions while the statutory rescission right is a mechanism in which the parties are allowed to "escape" by law in consideration of the comprehensive interests. Second, the value orientation about the rescission right of contract. Different legal values are embodied in the contract law, including freedom, justice, efficiency and safety, etc. Thus what kind of value orientation the rescission right of contract shall possess? There is no definite answer available now. Freedom is the fundamental value of the rescission right of contract and the value of justice also shall be taken into account; the value orientation of the statutory rescission right is diversified due to its diversified types. In the case of breach of contract and force majeure, the rescission right of contract reflects the value of justice of law in the first place while efficiency and safety set the necessary limits for the rescission right of contract. Other statutory circumstances are varied in types and thus hard to be epitomized on a uniform basis. Chapter Two The Development, Evolvement and System Review of the Rescission right of contract. This chapter aims to streamline and dissect the evolvement of the rescission right of contract system and its manifestation in laws among different countries. In the first section of this chapter, the author concentrates on the evolvement process and characteristics of the rescission right of contract in the development of the contractual obligation of Ancient Rome. The author believes that a variety of rules concerning the rescission right of contract had already existed in the R...