A Study On The Retroactive Effect Of Rescinding Contract

Because of the dark, blankness and even inconsistency of the legislation in our country, there are many disputes concerning the retroactive effect of rescinding contract in academia, so it is necessary to study on it. This article is to analyze this problem comparatively considering the theories, prejudications and legislation of the two legal system and the recent international legislations. And then uses the conclusion to discover the legislative and theoretical deficiencies in our country and brings forward my ameliorating ideas.Besides the foreword and conclusion, this article is divided into four chapters.The first chapter is about "the summarization of rescinding contract and its retroactive effect", whose viewpoints are as follows: Rescinding contract is that one party of the contract exerts his legal or contractual right of rescinding contract to annihilate the effect of the contract relationship after it has come into existence effectively and before it has fully or partly performed. The retroactive effect of rescinding contract reflects the changing of the legal value judgment toward the effective contract. Its intention is to maintain the value ideas.The second chapter is about "the basis of the retroactive effect of rescinding contract", whose viewpoints are as follows : considering the difference about the relative independency character of each part of the contract between the non-continuing contracts and the continuing contracts, it is necessary to set up the paratactic system of rescinding contract and terminating contract. The commonness of this two kinds of contracts, annihilating the effect of the contracts forward, is not enough to set up the system of "broad sense" rescinding contract.The third chapter is about "the constitute of the retroactive effect ofrescinding contract", whose viewpoints are as follows: The theory of liquidating relationship which is based on the theory of the object of rescinding contract is the most accord with the constitute of the retroactive effect of rescinding contract. Thus, the retroactive effect of rescinding contract is composed of two parts: annihilating the effect of the performed obligations and producing the claim of restoring the original status.The fourth chapter is about "the embodiment of the retroactive effect of rescinding contract", whose viewpoints are as follows: The embodiment of the retroactive effect of rescinding contract is the claim of restoring the original status. The producing of this claim is the exertion of legal-technical function of the right of rescinding contract, and it also reflects the legal techno-restrict and its time spirits. The character of the claim should be analyzed detailedly according to the choice of the transferring mode of real rights and the object of rescinding contract.