On The Problems Of The Termination Of The Contract System In China And Its Perfect

The contract rescission system is one of the independent systems in Contract Law of the People's Republic of China. This system is included in the chapter of "Termination of the Rights and Obligations of Contracts", but it impairs nothing of the system as one of the important system in contract law. The current contract law of China is absorbed essence from the three annulled contract laws and formulated a more perfect contract rescission system than before. Process of forming the system embodies the legislators' thinking completely which renew cognition uninterruptedly and absorb ripe experience continuously from the legislative technique and judicial practice before. The process also reflects the different understanding in the theoretical field. After this system has appeared in public, there are many different views and settlements about the application field of contract rescission, the understanding and determination of legal particular matters about rescinding a contract, the procedure of dissolving a contract, the court have the right to terminate a contract by judgment or not, the parties have the right to ask for damage compensation or not and the spheres of damage compensation, etc. Though there are many theses about the system, because of those enumerated reasons, the author still thinks there is a necessary to expound the related theories further. In order to complement the system and harmonize the substance, the author tries to explicit the intrinsic attribute by the juristic principle and points out defects of the other theories which provide suggestion to the legislative organization for improve the system and to the judicial department for unify the standard of law enforcement. This thesis begins with the basic concepts of the contract rescission system, emphasizes the application especially by means of analyzing the related clauses and theories in conditions, procedures and legal consequences to define the connotation, combines cases in judicial practice to point out the defects and put forward new suggestions in four parts.Part one begins with the fundamental concepts, clarifies the notion, the characteristic, divides the contract rescission into stipulated condition and statutory condition, and furthermore analyzes the different theories. Meanwhile, part one includes the defects of contract rescission system in the current contract law of China and some related improvement suggestions.Part two studies the contract rescission conditions. The author compares with the domestic and overseas contract rescission conditions to expound this system of our country which demonstrates the stipulation by samples and includes the clause of "other circumstances specified by the law occur" which provides the margin to the application of specific provisions of China contract law and other laws related to the contract rescission system. The author makes some suggestions to try to get rid of the defects of contract rescission conditions of our country.Part three emphasizes the contract rescission procedure. China contract law clearly defines the contract rescission procedure not by the court, only by the different parties of contract which respects the doctrine of the part autonomy completely. From the analyzing of some cases, the author identifies the ways of contract rescission, the parties have the rights to implead about contract rescission or not, the courts have the right to make judgment of rescinding a contract or not to make the vague ideas about contract rescission procedure clearly.Part four discusses the legal consequence of contract rescission. The author thinks that the contract rescission should have retroaction in theory. There are differences into the original state can not recover in fact, the original state should not recover, the original state can recover in fact.The responsibility of damage compensation is a compensation for the no- defaulting party, parties should ask the damage compensation on the base of lost in faith.Contract rescission system is a very important system in contract theory. The author tries to expound the system furthermore from the essence to the divergence, to the vague ideas. The thesis is a distinctive doctrine which maybe extends the ideas in the sphere of learning. There may have some mistakes in the thesis, It's the author pleasure to get valuable comments.