The Contract To Lift The System Of Practical Analysis

The Chinese Contract Law has been amended several times from drafted to adopted. And among all the drafts, the articles of rescission of contract has been most changed. These changes reflect the process that the system accepted international uniform contract enactment and abandoned civil law enactment. And they also reflect that there is a lot difference on this theory in China. The articles of rescission of contract in the Chinese Contract Law absorb legislation experience and the latest theory of common law, civil law and international uniform contract law, and overcome many shortcomes, which included that the system was short of guidelines, confused and has the content coincident. But it doesn' t mean there is no need to discuss the system. This paper tries to study the application of the system, especially to analysis the procedure and legal result of rescission of contract, and the problems existed in judicial practice . There are three chapters in this paper. The first chapter refers to basic principles of rescission of contract, which divides rescission of contract into consensual rescission and legal rescission, and clear their delimitation and characters. It also discuss the requirements of legal rescission, and emphasizes legal restrictions of it. In chapter 2, the paper researches the procedure of rescission of contract, which points out that the notice of rescission of contract needn' t adhere rigidly to written form. If one party doesn' t give a clear notice of rescission to the other party, they cannot directly request the people' s court or an arbitration commission to confirm it, which shows private law autonomy. And it advocates that the parties should exercise the right to rescind the contract within a reasonable time period. Through there' s no clause about time limit in the contract law, judicial explanation has stipulated scheduled period. So method of analogy can be thought to apply to it. The third chapter discusses the legal consequences of the dissolving of the contract, stipulates that the dissolving shall be integrated and binding the prior contracting activities; confirms that the coexisting model of both contract dissolving and compensations for damage for non-performance of its obligations. Regarding the dissolving of contract and the obligations burdened thereof by each party, the Contract Law stipulates that, in principle, the party who breaches the contract shall compensate the non-breaching party the benefits and interests it anticipates to obtain by performing the contract, both the method of contract dissolving and fine for breach of contract can be applied. In his , Engels pointed out that the dialectical view of nature opposes to the thinking methods of It must be either this or that, and it is the same in social science. The law science, as a social science, has a long-term history and rich contents. Although, many problems such as the statutory conditions of dissolving of the contract, the binding effects of dissolving and the theoretical basis of compensation, etc. has been focused by many experts and specialists, they have made great efforts to study and make research on these problems and have done a good job. Therefore, my article discussing these problems again is seeking to find and discuss something new in detail, is by no means of mechanical repeating. In addition, others problems, such as the nonfiction of the dissolving of the contract and the effects of its litigation, the dissolving and its anticipated benefits and interests, etc are rarely discussed in the academic community. However, these problems are constantly seen in legal practice and have raised many disputes, it seems therefore that the discussion on these problem is beneficial to the legal practicing department and law enforcement whereas it is not so highly valued in academic. In studying method, this article adopts the method that combines the theory with legal practice, case analyzing with comparative studying.