On The System Of Civil Law Legal Contract Termination

There exist great disputes to legal contract-cancellation system of civil law system in theory and legislative and judicial practice chronically. This essay attempts to analyze and compare the different opinions to the important and hot issues in this system, presents the author's personal opinion combing with his own apprehension and sentiment, and simultaneously ponders and reviews the contract-cancellation system in the current law system of China. The first part of this essay starts with the concept of contract-cancellation which is the parent concept of legal contract-cancellation, establishes that contract cancellation must be on the premise of the existing of right of cancellation, thus excludes the application of contract-cancellation regulation to agreed cancellation, and further educes the concept, character, system, purpose and function of legal contract-cancellation. The author indicates that elgal 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 formation, and the act concerning it is unilateral, informal and disposable act. This system aims to provide the creditor a remedial measure to shake off the binding of the contract when strictly observing the contract is impossible or unnecessary. The second part analyzes the subject and object of the legal contract-cancellation, and figured that the subject of the right of legal contract-cancellation should be the creditor owing to this system aims to provide the creditor a remedial measure when the obligation of the contract can't be performed. The author thinks the effective creditor's contract should be the object. The third part compares the legal contract-cancellation with other similar concepts, analyzes the commonness and difference, thus educes the legal characteristic of legal contract-cancellation. Whereas the reason of occurrence of the legal contract-cancellation can be considered the beginning to regulate the legal contract-cancellation system, by means of historical analysis, the fourth part reviews its occurrence in Roman law era, formal establishment in Civil Code of France and Germany in modern history and its other development process. Then it discusses the reason of occurrence of the legal contract-cancellation of the civil law system successively, and provides different opinion to the practice, in which China simultaneously introduced the refusal of performing the contract in the civil law and anticipatory breach of contract in the Anglo-American law system as the reason of occurrence of the legal contract-cancellation. The fifth part mainly discusses the means of exercising the right of legal contract-cancellation. The author thinks that the formation characteristic of the right of legal contract-cancellation has crucial influence to its exercising means. He thinks the cancellation by notice is the most appropriate way to exercise the right after comparing the three exercising means in the civil law system. This way has been accepted by Chinese law, but has not been paid enough attention. The validity of legal contract-cancellation, especially the existence of retroactivity and the relationship of legal contract-cancellation and damage compensation, are the most stinging topics. In the sixth part, after briefly introducing the different theory, the author confirms the Direct Validity Theory, which considers that legal contract-cancellation and contract-cancellation should have certainty and retroactivity. He analyzes the reason to choose this theory and thinks that choosing ism abandoned by Germany Law is too partial to logic and the corresponding both-aegis ism completely fluctuates its retroactivity basis. Giving consideration to both the logic of law system and the realistic and righteous claim is the most advisable way by reviewing the position held by Switzerland Liabilities Law. To make an integrated discuss to the legal contract-cancellation system, the seventh part gives generic introduction to the extinguishments of legal contract-cancellation. The civil law system has great influence to China's legal system, by reviewing the legal contract-cancellation of civil law system and compare with this system in China's current law, the author gives his opinion over the actuality and improvement of this system in the eighth part. The theory and practice of legal contract-cancellation of the civil law system is abundant. Studying it will help us to widen our eyeshot, draw more experience, enhance our cognition, thus improve and complete this system in Chinese law. The above not only is the intention to write this essay, but also is the due result of this essay.