On The Effect Of Contract Termination

Although the contract rescission has a long history in the practice application, relevant theoretical research is also very rich, but the effect of contract rescission in different countries and regions is still an important theoretical problem. Article 97 in "contract law" is the main basis of the effect of contract rescission, not only the content of restore original is difficult to know, but also range of the compensation for the loss, basis of claim, calculation method, the autonomy of the parties and other problems are unclear. In theory, there is opposition between direct effects theory and compromise theory. The liquidation relationship theory also receives more and more scholars support recently. On this basis, it also produced diametrically opposed views about nature of restitution properties and compensate for the losses. On the occasion of the compilation of civil code of China, these are to be on more in-depth discussion and research, to provide guidance to our country's legislation and judicial practice.The research in this paper is mainly to establish the system of contract rescission effect, through a systematic perspective integrate the theory of contract rescission effect and restitution, compensation for losses, and the related system, realize the internal logical unity. At the macro level, this paper focuses on the cohesion of the system purpose of contract rescission, the theory of contract rescission effect, anticipatory breach of contract, and the rules of the risk burden; at the micro level, this paper pays more attention to the content of the specific system achieve, such as the specific content of the restitution, the specific scope of compensate for the losses and the calculation methods, to make this research having more practical significance to the judicial practice.In addition to the introduction, this paper consists of six chapters.The first chapter mainly analyzes the concepts and contents of the termination of the contract, which focuses on the analysis of the relationship between the contract rescission and termination, and system location of the rescission by agreement, and other issues. This paper argues that there is no essential difference between the rescission of the contract and the termination of the contract, but the two is different from the rights and obligations under the contract termination. Our country should not distinguish between contract rescission and termination of the contract in the legislation in the future. In the field of contract, we should not distinguish between temporary contract and continuing contract in the abstract concept. We should adopt the concept of contract rescission, and all of them are under the unified contract rescission system. In essence, contract rescission by agreement is one of the types of contract rescission, which should be included in the contract rescission system.The second chapter mainly discusses the basic theory and the status of the effect of the contract rescission. This article is in favor of liquidation relationship theory and no retroactive effect theory, and thinks it should be the theoretical basis for the termination of the contract by the new liquidation relationship. The innovation of the theory of the new liquidation relationship is the comprehensive intervention of the party's autonomy of the parties, flexible choice of liquidation, no longer mandatory restitution. One side, it enable the contract which has been performed to identify exiting, provides the basis for damage compensation claim, provides basis of existence for the liquidated damages clause, the deposit clause, dispute settlement clause, can effectively protect the legitimate rights and interests of the parties. On the other hand, this view adopts liquidation relationship rather than the obligation to return, leaving a space for the parties to decide the effect of rescission, with full respect for the autonomy of the parties. This paper argues that the reference and the introduction of the liquidation idea, the contract encountered obstacles triggers the liquidation relationship between the parties. The liquidation is not by the "contract law" Article 97 mandatory restrictions, but the autonomy of the parties. "Contract law" Article 97 is not a mandatory requirement, but a complementary arbitrary norm, with prompt and guiding role, can provide typical relief path for the parties. After the rescission of the contract, the parties may freely decide to liquidate the content and form: 1. determine which contractual obligations are released; 2. clearing and settlement according to the nature and performance of the contract; 3. decide the content of restitution; 4. negotiate compensation for the loss of content, and the other way to carry out the liquidation; 5. the best way is to restore the original status and damage compensation are quantified into money, to make a net settlement.The third chapter mainly discusses the system of the effect of contract termination. On the basis of the theory of new liquidation relationship, the effect of contract termination is a process of fully showing the autonomy of the parties, which is an organic whole composed of a variety of effects. It includes the effect of exemption and transformation. The exemption effect is that the effect of releasing the parties from the contract relationship. Transformation effect refers to the liquidation of the interests between the parties. Exemption effect is not rigid, inevitable, which is full of autonomy. A party who has the right of termination not only has the right to determine the scope of the lifting, but also the right to determine the scope of exemption and waiver of content, the premise is realistic and does not cause unnecessary burden on each other. Logically, the essence of the decision of scope and content of the exemption is the depth implementation of the autonomy of the will in the contract.Transformation effect is more abundant, including the restoration of the status quo and the interests of re balance. Restitution includes restitution, payment of restitution costs, and the amount to be repaid. The balance of interests includes the compensation for breach of contract damage, and the loss of non- default relief. In principle, the compensation for breach of contract damages should take the performance interests as the standard. But it should be deducted benefits gained in the performance and restitution. The benefits can be difficult to prove or the benefits can be negative, the compensation for breach of contract damages should take the reliance interests as the standard. But it also should be deducted benefits gained in the performance and restitution. From the point of autonomy, economic efficiency and transaction security considerations, the interests of the contract will be released after the currency and the way to achieve net settlement is the best choice for the parties.The fourth chapter mainly discusses the restitution obligation of the contract after the rescission of the contract. The restitution in civil law of our country can be divided into the damage compensation type restitution and interest restitution. The legislation of our country strips out a lot of the original content of the restitution in the civil law of the continental law system, then became legal independent responsibility undertakes the way, so that the content of restitution in our laws is far less than that of Germany, Austria and China's Taiwan. Because restitution in every legal provisions in the language still exist differences between each other, every provision should still be specific targeted analyzed. Right to rescission in nature belongs to the right of formation, lifted righter according to his own meaning make the already existing contractual relationship transferring to a liquidation relationship, and destroy the credit and debt which has not yet been performed. This is the effect of the right of dissolution as a right of formation. Restitution claim is a claim of creditor's rights, or more specifically a contractual petition. Restitution mainly includes three contents: the return of the original, return the amount to be repaid when the original cannot return, the repayment cost.The fifth chapter mainly discusses the interest balance after the termination of the contract, including the effect of exemption and transformation. The emphasis is on the relationship between contract termination and damage compensation and how to apply it. This paper takes the no retroactive effect theory, so the contract prior to the termination does not destroy. So in prior to the termination, a party because generalized does not fulfill the debt and lead to the occurrence of damage the opposing party, should be identified as the liability for breach of contract, the liability for damages should also be liability for breach of contract provisions, righter can claim available benefit. The cause and effect does not destroy because of contract rescission, the fulfilling interest theory based on no retroactive effect theory has the logical coherence and unity. The basis of claim for damage compensation in contract rescission is the "contract law" article 107, not Article 97 itself, and is not the provisions of the law and tort compensation. For the composition of the available benefit, this paper argues that introduced reasonable certainty rules, and predictable rules of complementary, to reduce the standard of proof. For interest calculation method, this paper does not agree with subjective method and objective calculation method as computational methods, because from the point of view of the definition and the actual content they are not real calculation methods, but the standard price options. Difference method is not a specific calculation method, but in the definition of damage in the general principle. In this paper, three kinds of calculation methods, the convention method, the analogy method and the inverse method, are analyzed in detail. Loss sharing refers to the termination of the contract due to force majeure, frustration of contract and other non breach of contract, which leads to the loss of how to be fair to share between the parties. The losses and expenses need to share include: completed payment, execution cost and delivery costs and restitution, minus the return payment(cash value).The sixth chapter mainly discusses the specific application of the contract rescission and other related systems. In the future obligation law, on rescission of the contract and risk bearing rules legislation mode, we should adopt the mode of the coexistence of the two as Germany, Japan and other countries. To improve the utility of the mode of the coexistence, we need to clarify both the relationship, to resolve the contradiction between the two and establish a complete, uniform coexistence pattern. Contract rescission and penalty can be applied at the same time, the parties can request to rescind the contract, and according to the stipulations of the contract request for payment of liquidated damages. With original contract creditor's rights guarantee, the guarantee relationship not be extinguished because of the rescission of the contract, still guarantee relieves the compensation obligation. Restitution is formed on the basis of the liquidation relationship which is produced from the original contract. It is a kind of right of claim on the second contract. In essence, it is the original debt transformation, so that guarantor should continue to bear the liability for warranty, otherwise agreed by the parties except.