On The Contract Legal Rescission Right

The system of the contract legal rescission right is one of the civil law fundamental systems. With the vicissitude of the civil law fundamental value logos, it was prevalence attended by foreign countries in contract legislation with its proper function, value and recondite of system intension, and it gradually became one of the important relief measures of Contract law. It offers institutional insure to effective protect a contract party's lawful rights and interests. With analysis of the foreign litigations of the contract legal rescission right, we more understood the institutional value orientation and legislative trends of the contract legal rescission right. Reasons, performance, efficacy as well as extinction for the contract legal rescission right were its institutional fundamental intension. They are not only constitute the legal rescission right's institutional fundamental frame, but also create conditions for its institutional value, function realized, and for the purpose of ensuring party lawful rights and interests, promoting dealt and maintaining dealt order.Through carrying out effect, new"Contract law"94th-97th's stipulations of the contract legal rescission right, can yet be regarded as a successful instance of legislation. With the development of our national market economy, the shortcoming and insufficiency of the contract legal rescission right gradually became visualized. It should be further perfected. The aim of this dissertation is to explain the theory of the contract legal rescission right and construct complete system of the contract legal rescission right adapted to the reality of our national market economy. The perspective is from macrocosm to microcosm and from frame to detailed rules. The author hopes that this dissertation can intrigue the scholars to benefit the development of the theory and practice of civil law. The text of the dissertation can be divided into four parts.The first part, analyses foreign countries'legislative mode of the contract legal rescission right system. The stipulations of contract legal rescission right system in different country of different legal regions doesn't only differ from each other, but also have some in coincidence. Through introducing, analyzing and comparing the legal mode in France, German, Britain and America, we resolve the problem that which successful mode we could choose and provide necessary reasons.The second part, legal reasons for the contract legal rescission right. The contract legal rescission right's legal reasons are the key content of the contract legal rescission right system. So the contract law's stipulation not only directness resolve the perfect of the contract legal rescission right system, but also influence the quality of the entire contract law legislation. It is said that the legal reasons for the contract legal rescission right should be divided into two sections: one could be applied to general contract, such as, delay in performance, repudiate in performance. The other is the characteristic legal reasons for contractor's contract, shipping contract and trust contract. This text only discuss with the legal reasons for the general contract: First, fundamental breach of contract. Through analyzing the form of breach of contract, we know the legal reasons of the contract legal rescission right in the condition of anticipatory breach of contract, delay, repudiate, unsuited, insufficient in performance and delay in acceptance. Second, force majeure. Penman poses some perfect opinion about the"Contract law"through analyzing the related stipulations of"Germany modernizes debt law".The third part, the performance and extinction of the contract legal rescission right. Because of their different value, they cannot be taken place of in the contract legal rescission right system. Penman makes a detailed discussion of them in after two aspects: First, the performance of the contract legal rescission right. It is the necessary procedure of terminating a contract. It is should be useful to terminate a contract correctly that to certain the way of performance, procedure, effect of contract legal rescission right. Second, the extinction of the contract legal rescission right. The contract legal rescission right belongs to formative right, in order to avoid rescission right abusing, penman makes a detailed discussion about the necessary of constructing the extinction of the contract legal rescission right system, and analyses the reasons of extinction of it. Penman refutes the traditional viewpoint that the contract legal rescission right ought to become extinct in the condition that the acceptor cannot repay the giving. In my opinion, we can use value-substitute system to replace extinction. So if acceptor could pay the compensation, his rescission right will not become extinct.The fourth part,comment on the contract legal rescission right that is stipulated in"Contract law". From analyzing, we pose some suggestions to perfect our country's contract legal rescission right system. The insufficiency of the contract legal rescission right has influenced the development of market economy. Thus we should perfect it. First of all, we should know the insufficiency of our national contract legal rescission right. There are four aspects of insufficiency: first, the scope of application of the contract legal rescission right. The"Contract law"doesn't stipulate that the third party contract also can use the contract legal rescission right. Second, in performance of the contract legal rescission right, the"Contract law"doesn't limit the time period of raising an objection. And"Contract law"doesn't stipulate that the rescissory intension can be canceled and the rescissory intension can be added with conditions or time periods. Third, the"Contract law"doesn't stipulate that the contract legal rescission right won't become extinct in the condition that the acceptor cannot repay the giving. In the second section, penman poses some detailed suggestions on constructing perfect contract legal rescission right system. Considering the reality of our nation and using the contract law legislative experience of other countries and regions for reference, the author preliminary constructs the detailed stipulations of the contract legal rescission right system in our civil code. The stipulations include four aspects: the concept of the contract legal rescission right, legal reasons for the contract legal rescission right, the performance of the contract legal rescission right, the extinction of the contract legal rescission right.