The Research On The Theory Of The Right Of Legal Contract-Cancellation

There exist great disputes about the issue of the right of legal contract-cancellation in theory and judicial practice for long-term. With the comparative research way, this essay attempts to study and analyze the different opinions in different countries, including the stipulations of the substantial law of International Convention about this issue. While presenting the author's personal opinion combing with his own apprehension and sentiment, it ponders and reviews the defects of the right of the contract-cancellation system in the current law system of China.There are seven chapters in this paper.Chapter One is preface. This part briefly introduces the particular characters of legal contract-cancellation——as a relief right being endowed by the law to free the party concerned from the restriction of the contract, and remarkably characterizing on the reasons of occurrence, the exercising means, the exercising form, the exercising limitation, the exercising validity, the extinguishments of the right of legal contract-cancellation.,so as to put forward the details of the right of legal contract-cancellation.Chapter Two is about the concept and types of contract-cancellation. Starting with the concept of contract-cancellation, this part establishes that contract-cancellation must be on the premise of the existing of tight of cancellation, thus excludes the application of contract-cancellation regulation to agreed cancellation, and further educes the concept and character of legal contract-cancellation. The author indicates that legal contract-cancellation refers to one party of the contract terminates the validity of the contract by performing the right of cancellation stipulated by law. The right of legal contract-cancellation is right of statute, subordination and formation.Chapter Three is about the reasons of occurrence of legal contract-cancellation. This part firstly analyzes the five reasons of occurrence of legal contract-cancellation of Chinese contract law system stipulated in the ninety-four clause of the Contract Law of China, expounding the author's viewpoints about the relevant stipulations. Then, by means of analysis research way, it compares the reasons of occurrence of legal contract-cancellation of Roman law system, Anglo-American law system and the relevant substantial law of International Convention, reviewing the gains or loses and making an conclusion, holding that most countries take the contract-cancellation as the relief measure to the party who did not breach the contract, but at the same time restricts the specific situations of occurrence of legal contract-cancellation. How serious the consequences of contract-breach are is the basic reason of occurrence of legal contract-cancellation, and the general judgment is whether the main purpose of the contract can be actualized. In the end, drawing lessons from the overseas lessons, the author advises that the irresistible force as one of the reasons to terminate the contract be irrational, and introduce the anticipatory breach of contract in the Anglo-American law system into China as an independent system be unnecessary. Instead, on the basis of absorbing the associated stipulations in the Anglo-American law system, and making necessary branch on the refusal of performing the contract and unstable counter-argument right,it can reach the same effect of the anticipatory breach of contract.Chapter Four is about the exercise of the right of legal contract-cancellation. This part mentions the means, forms and limitations of exercising the right of legal contract-cancellation, and mainly discusses the later two. The author thinks the cancellation by notice is the most appropriate way to exercise the right after comparing the three exercising means existing in the civil law system——the first is to exercise the right by lawsuit, represented by the French Law; the second is to exercise by notice, represented by the Germany Law; the third way is represented by Japan, in which the contract can be naturally cancelled when conforming to the law. And then the author exhausted his apprehension about the related stipulations in Chinese contract law system. As the limitation of exercising the right, the author puts forward the legislative suggestion to explicitly restrain the exercising time limit of the right of legal contract-cancellation. For example, the exercising period of the right of objection should be limited to thirty days, accounting from the day when the notice of contract-cancellation arrives at the other party concerned to the right. If not, the right of objection would be extinguished. As the limitation of the right of objection, it can explicitly prescribe that once exercising the right of objection, the effect of contract-cancellation will become uncertainty. During this period, the exerciser of the right of legal contract-cancellation is exempted from continuously fulfilling his contract-obligation. If the court or the arbitration agency verdicts the objection is available, he only needs to keep on implementing the contract without the responsibility of breach of the contract. But if the objection won't do, the effect of contract-cancellation will go into the effective situation.Chapter Five is about the validity of legal contract-cancellation. After briefly introducing the different theories, the author confirms the Direct Validity Theory, which considers that legal contract-cancellation should have certainty and retroactivity. Hereby, it analyzes the relationship between contract-cancellation and damages, separately discussing whether there is coexistence of the contract-cancellation and the compensation, the scope for the compensation, and the reasons of the coexistence of the contract-cancellation and liquidated damages , holding that the contract-cancellation and the compensation can be coexist but should not cover the loss due to the rescission results from the breach of contract, and the coexistence of the contract-cancellation and liquidated damages should depend on special situations.Chapter Six is about the extinguishments of the right of legal contract-cancellation. To make an integrated discuss to the right of legal contract-cancellation, this part gives a generic introduction to the extinguishments of the right.The last Chapter is the epilog. To sum up, it reiterates and emphasizes the author's apprehension on the character, the reasons of occurrence, the exercising means, the exercising form, the exercising limitation, the exercising validity, the extinguishments of the right of legal contract-cancellation...