Study On The System Of Rescission Of Contracts

The system of rescission of contracts is an important system in modern contract law. Although our current Contract law has a unified regulation of this system, there are still many aspects need developing and rearranging. In addition, the practice on Contract law is in chaos. Basic objective of this thesis is to find a good way to develop the rescission system in China by comparing the legislation, and cases of both Civil Law and Common Law Countries together with that of the International Pacts, analyzing the advantages and disadvantages of our rescission system. The thesis mainly dissertate the following four questions:Chapter one is a summarization of"rescission of contracts". Firstly, the author thinks there are two kinds of rescission of contracts: in broad sense and in narrow sense of rescission of contracts, the latter is regulated by the rescission system and is conditioned on the right of rescission. The author also explains the reason why the rescission through consultation should be excluded from the rescission system. The legal characters of rescission of contracts are analyzed on the basis of the definition of rescission. In the second section, the author deepens the understanding of the rescission by comparing rescission of contracts with termination of contracts and rescindment of contracts.In chapter two, the author mainly discusses the restriction on the rescission. Firstly, it makes a comparison of Civil Law and Common Law countries regulation on restriction on the rescission of contract and that of international Pacts, and draws a conclusion, the second section discusses the reason of legal rescission in our country, and analyzes the advantage and disadvantage of our Contract law in this aspect.Chapter three is on the exercise and vanishment of the right of rescission. With regard to the exercise of the right of rescission, firstly, the author compares three different forms of exercise manner of the right of rescission, and thinks meaning notice form is the most reasonable one. Although our Contract law adopts the reasonable form, the stipulation is not clear, the author discusses the exercise of right of rescission by analyzing two situations that we always come up with during the judicial practice, the author also analyzes other aspects, such as the period of the right of rescission and right of rescission of multi-party contract. As to the vanishments of the right of rescission, after introducing several reasons that can vanish the right of rescission, the author doesn't think other reasons, for example, invalidation of the right, losing and processing of the object of contract can vanish the right of rescission.The last chapter discusses the effectiveness of the rescission. The first question to be studied is whether its effectiveness may be retroactive after rescission of contract, the author thinks effectiveness should be retroactive. Reasons supporting this point are found from the following aspects, Firstly, the function and the value of the rescission system and the protection of the non-breaching party, Secondly, the logical relationship between the restitution and the retroactive effectiveness. Thirdly, restitution should have a board meaning in the rescission system, that is resuming of the interest of the non-breaching party to a state that equal to his/her state before signing the contract. Finally, the author discusses the rescission of third-party contract. In the last, the thesis discusses the relation between the rescission and the damages, the author agrees to the coexistence of the rescission and the damages, and thinks the range of damages should be determined by the board meaning of restitution.In a word, the author attempts to research the system of rescission of contracts as a whole by the comparative analytic method, and bring forward improving suggestions on our system of rescission of contracts. The thesis might be imperfect and superficial owing to the great width and depth of the civil law and the profound content of the system of rescission of contracts. I am open to criticism and correction from you.