| Our country contract law now was developed on the basis of having integrated three big original contract laws, it begins to be put into effect in 1999。This contract law Have accepted the advanced legislation experience of contract law of UK-US law and continent law, and have stipulated some advanced system such as discomposed counterargument fight,expect to break a contract system and foundation breaks a contract, On one hand, it has perfected contract law of our country system, on the other hand. It Fit the International convention and international common practice well. But our country contract legislation is still unperfected and unreasonable. In contractual system of the rescission of a contract, the doubt of regulation of Relieve condition,the contract rescission right,exercise procedure,effect that the contract rescission and compensation for damages still gets along. The paper keep a foothold on the relevance currently in effect "contract law"stipulates of our country, on the basis of comparing and studying the legislation experience and actual judicial practice of the international convention and international common practice, to study the problem of the Legal rescission of contract condition,exercising rescission right way, Tracing back and force that the contract rescission and the contract rescission compensation for damages in the day after tomorrow. And to comment on and analyze our country contract advantages and disadvantages of rescission system, Bring forward self individual view of perfecting our country contract legislation of rescission system in this. It carries out in three parts:PartⅠis the Basal principle of the contract rescission. That part divides into two parts, the concept that the contract and legal rescission of contract condition. To the concept of contract rescission, the angle that the scholar understands differs, therefore big dispute is existence. By compare the concept of the contract rescission of UK-US genealogy of law to the continent genealogy of law, and combine the understanding of our country rescission, I thought, contract rescission refer to that it was acted by the mean of one part or neither parts to rescission the contract relation after the contract is evadible and the condition of contract rescission is prepared. Ater having analyzed connotation and extension of rescission and legal rescission here fatherly, we carry out comparison rescission right to legal rescission. Condition to legal rescission and so on, The textbook definition sets off from the law of our country, and carried out to mark on various contract rescission in the form of breaking a contract ,combining with several circumstances of the 94th clause of our country "contract law".PartⅡis the problem analysis of contract relieves system in our country. It carried out in four aspects in this part. The first is about the way of execution for the contractual right of the rescission of a contract. Clause 68, 69 in Chinese Law of Contract stipulates that the execution of the right of the rescission of a contract should inform the other party, and when divergence exists, they can appeal to People's Court or arbitral agencies to confirm the validity of the contract. There is disputation about the understanding and applicability'of this clause in judicial practices. And the disputation lies in whether the declaration of will for the rescission is a necessary procedure. Clause 95 in Chinese Law of Contract stipulates time limit for the execution of the right of the rescission ofa conmact, but no further definite restriction is made, so that the relationship of right and duty between the two parties is put into an unstable situation. Thus disadvantageous effect on the security order of contract arouses. The second one is about the five situations of the contractual legal rescission. The change of event was not stipulated in the conditions of the contractual legal rescission, so that similar phenomena in actual life were not disinterestedly corrected. As to the anticipated system of the breach of contract, the stipulations in Chinese Law of Contract are too simple and abstract, so that judicial discontent is easy to bring about. For the delay of performance, Chinese Law of Contract stipulates: "no performance is taken in a reasonable period after being urged", but the law did not stipulate the time limit. Thereby some modification and perfection should be made in legislation. The third is about the power to trace back for the rescission of a contract. There is no definite attitude toward this in Chinese legislation. This paper holds that no matter for keeping the inside harmony of the legal system, or for the protection of the party's rights and interests and social order, the rescission of a contract should have the power to mace back in principle. It is indefinite about it theoretically, and the fundamental reason lies in the fact that the understanding for reinstatement is too narrow and needs correction. The fourth is about the scope for the compensation of the rescission of a contract. The doctrine of coexistence, which insists the coexistence of the rescission of a contract and the compensation for the damage of the negative interests. Chinese Law of Contract confirms the coexistence of the rescission of a contract and the compensation. But as for the scope of the compensation, disagreement exists.PartⅢis to perfect legislation about our country contract rescission system. This part offers four suggestions for the perfection for Chinese contractual system of the rescission ofa contract. Firstly, the definite time limit for the execution of the right of rescission. Analogy of the second item of clause 15 in "About the explanation handling several questions of applicable law of dispute case of deal contract of commodity apartment" by The Supreme People's Court is helpful to the applicability of"reasonable time limit" in judicial practices. Secondly, the perfection for the conditions results in the rescission of a contract. The change of event should be developed step by step, and the clauses about anticipated breach of contract should be reformed. The Right that contradicts uneasily needs to be extended. For the situations in which delay of pertbrmance is in need, the deletion for the restriction of "being urged" is suggested. Thirdly, the definite stipulations for the power of trace back in the rescission of a contract. the possession of this power is beneficial to the benefit protection for the party, who does not breach the contract. Stipulations about the applicable conditions and consequences should be made in Chinese legislation. Fourthly, further expansion for the scope of compensation. There is no definite stipulation for the criterion of compensation in Chinese Law of Contract. This paper suggests further expansion, namely the principled compensation for the loss due to the rescission results from the breach of contract, it is feasible to compensate the loss of interests theoretically and in legislation. But the compensation should depend on special situations. |
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