On Exercise Of The Right To Cancel Contracts

The contracts cancelling system is one kind of the contract succour system. Occupation an important position in the Contract Law. The problem of exercising the right to cancel contracts is the important part of the contract cancelling system.It is always the important issue of civil law theories research. But,there are no unification scale on exercising method, exercising period and exercising restriction of the right to cancel contracts in the civil law theories field of China today. There are many debates about it among different theory groups. In practise the lawmaking on the right to cancel contract is not concrete and explicit,so there are a lot of problems in using law. Therefore, with the development of market economy today, how to standardize and explain on the exercising the right to cancel contracts in the economic activities becomes more and more important.Discussing the ritht to cancel contracts from four aspects in this paper, the concrete contents generalizes as follows:In the first part,discussing the way to exercise the right to cancel contracts. Firstly,elaborating the provision on the way to exercise the ritht to cancel contracts in current law.Concluding that though it is different about expressing that in all countries lawmaking, it's all that the party exercise the right to cancel directly.If the party wants the counterpart knowing his declaration of intention.It is need the way to inform, athough the concrete form is different.Secondly analyzing the application of the current laws in practise.Furthmore illustrating clearly the way to inform and the time to delivery.Pointing out that the way to inform is either oral or written form. In general announce, declaration and issued on newspapers and so on can not be applied for informing. Inform can be carry on though lawsuit.Illustrating clearly the different situation on the"arriveing"time.In the second part,analyzing the period of the right to cancel contracts.Firstly,summarizing the provision of period on exercising the right to cancel contracts of current lawmaking in our country. Also analyzing the period in exercising the statutory right to cancel.Based on this,analyzing the reasonable term of contracts related to the exercising the right to cancel contracts.The writter thinks that this should be analyze concretely.First,under the situation that the party urge, the reasonable term can be assuranced as three months according to related judicial interpretation.Meanwhile the people who have no right to cancal can stipulate the term of exercising the right to cancel of the people who have the right to cancal.The right to cancel can not be exercise for being overdue.And the right to cancel be expired.Second,if the party don't urge,the readonable should not last too long and should be shorter than the period of litigation.In law practise the period of exprating the right to cancel can be one year.In the third part,discussing the restriction of exercising the right of cancel contracts. There are four aspects restriction of exercising the right of cancellation contracts.Firstly, exercising the right of cancellation can not attach conditions and attach term.Secondly, exercising the right of cancellation can not repeal.Thirdly,under the situation of delay in delivery.The writer think that when situation of delay in delivery take place,the poeple who have right to cancel can choose between exercising the right of cancellation contracts and acceptance delay in delivery.If the choice is latter and the declaration of intention of acceptance the delay in delivery is true,the right of cancellation expire. The poele who have right to cancel can not exercies the right to cancel because of delay in delivery.On the contrary, if the declaration of intention violate the party's true declaration of intention because of counterpart's fraud, stress or means taking advantage of other's predicament, the poele who have right to cancel can appeal the court or arbitration organization to cancel and recover the right within one year after the party knows and shoule know.Otherwise the right to cancel expire.Fourthly, under the situation that one party make the countpart default because of his behavior.In order to cancel the contract,one party may make the countpart default because of his behavior,this make him exercise the right to cancel.In the writter's opion,the party can not exercise the right because of this,or this will damage the benefit of the courterpart.In the fourth part,discussion the effect of right to cancel,Mainly involve content of twe aspects: Firstly, whether the contract have retroactivity. The writer think that we should distinguish and can't be treat different matters in same manner.In practise, we shoule make the main measure standard based on the declaration of intention of innocent party and protection his benefit.According to circumstance of fulfillment and the property of the contract concretely.Under the situation of agreed rescission,whethe there is retroactivity depend on the will of party.Under the situation of statutory dissolution.We should analyz it in different circumstance.Generally speaking,the cancellation of standing contract have no retroactivety in principle,the cancellation of nonstanding contract have retroactivety in principle.Second, the problem of contract cancellation and indemnity. Discussing this from two aspects mainly:Firstly, whether the party can requests indemnity after contract cancellation.On the one hand, if there is retroactivety of contract cancellation,this will lead to the law outcome of restoring the contract to the original conditions. Restoring the contract to the original conditions aims to make both the parties'benefit recovery to the original conditions.While indemnity aim to compensate the other party's loss and make one party as the center.Because the difference of design idea between restoring to the original conditions and indemnity system.The range of both do not coincide.When the creditor can not be made up throuth restoring the contract to the original conditions,he can require compensate the loss. On the other hand,if there is no retroactivety of contract cancellation,the contract relation will expire in the future.There is effectiveness of the payment before cancellation,and the courterpart will get indemnity because of the behavior of the defaulting party.Otherwise this will vialate the principle of fair.Secondly, how to make sure the scope of the indemnity.First, under the sistuation of agreed rescission,the scope of the indemnity should be based on the intension of the parties according to the the agreement.But this agreement can not be obvious unfairness.Second under the sistuation of legal dissolution,we should analyze concretely.If force majeure leads to the contract cancellation,in the one hand,this demage made by the force majeure need not be compensate.On the other hand,if the force majeure takes place because one party delay to perform,then when the contract is cancelled,the one party should undertake duties of damages which scope should not be compensate the loss of the expectation interest.Innocent party can claim his loss of the expectation interest ,under the situation that innocent party inform breaching party to cancel the contract when one party default.