Study On Legal Problems Of Rescission Of Contract

As the indispensable composition of the modern system of contract law, the system ofcontract rescission is more and more valued by the legislation and justice of differentcountries, meanwhile, not only the system of contract rescission in civil law system butalso the system of contract rescission in common law system is absorbed by internationaltreaties so as to make a set of unified, scientific and flexible rules of international civil andcommercial contract rescission. In the law-making process of current contract law,focusing on the comparative study on the system of contract rescission andcomprehending deeply the value of system of contract rescission, the legislation makes aprogress by regulating the system of contract rescission as an independent legal system. Asa result, the conflicts concerning the system of contract rescission among the former threecontract laws do not exist. However, the deficiencies and shortage of the system ofcontract rescission cannot be neglected, especially after entrance to WTO, our countryparticipates in global economic competition more widely and deeply. As the mostimportant form of civil and commercial transaction, the restriction of contract to theparties is essential. So it is urgent to establish a system of contract rescission that isscientific, systematic and well matched to international treaties in our country.Considering the above-mentioned factors, the dissertation probes the advantages anddisadvantages of our country's system of contract rescission and aims at establishing anideal system of contract rescission from the angles of comparative legislation and practice. The dissertation contains five chapters. Chapter One is introduction of contractrescission. Chapter Two is conditions of contractual rescission. Chapter Three isconditions of legal rescission. Chapter Four is legal effects of contract rescission. AndChapter Five is about legal problems of exercising the right to rescind contract. Chapter One firstly explores the concept of contract rescission theoretically by makingthe differences between contract rescission and contract termination and elaborates theproblems why the orientation of system of contract rescission in our contract law isunreasonable. Secondly, it introduces and analyzes the three forms of contract rescission inour contract law, and provides the reasons why rescission through agreement shall not beconcluded by the system of contract rescission. In the former part of Chapter Two, the author makes a comparative study on conditionsof contractual rescission in different countries. In the latter part of Chapter Two, the authorputs forward several suggestions in regulating cancelling clause, such as invoking basicprinciples in civil law, applying stipulations as to regulate sample clause, and introducingthe waiver as a condition of contractual rescission. Chapter Three is the chapter which is the most meticulously described and deeplyexplored. Undoubtedly conditions of legal rescission are the core of system of contractrescission. The author firstly regards the system of change of circumstances as one ofconditions of legal rescission, and elaborates the relations between the system of change ofcircumstances and legal rescission from the concept of the system of change ofcircumstances, the application of the system of change of circumstances and its legalresults. Secondly, on the basis of introduction and analysis of legal rescission not onlyunder breach of contract in civil law system but also under fundamental breach in commonlaw system and international treaties, the author studies the concrete conditions of legalrescission in our contract law in order to make clear the advantages and disadvantages ofthem. In addition, the author agrees with the corresponding stipulations in the preliminarydraft of Civil Code of People's Republic of China, and sets forth the reasons why concreteforms of breach of contract shall be combined with the standards of...