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The Study On The Exercise Of Rescission Right Of Contract

Posted on:2013-08-02Degree:MasterType:Thesis
Country:ChinaCandidate:J X LiuFull Text:PDF
GTID:2246330371479208Subject:Law
Abstract/Summary:PDF Full Text Request
Any contract have terminated a day, but the termination of the different reasons,some are based on rights and obligations which terminated, some are caused by offsetand termination, some attributed to the discharge of the debt and termination, someare due to release and termination. Among them, the parties because of the contractcan not achieve the purpose and to exercise the contract rescission terminationcomplex situation. The parties based on what kind of consideration decides toterminate a contract, and in what circumstances will enjoy the right of cancellation,then perform the procedure right of rescission and termination of exercise, when itcan be effective, its effect produced by the law the effect how? Based on theseproblems, the system of contract rescission is broadly divided into three parts, namely,the validity of the contract for the termination of the contract, exercise, termination ofcontract effect. The reason is because of, the effect is, fruit, and so is a causal bridge,is where the parties to a contract with legal means to make yourself do minimaldamage from the contract bound approach. Therefore, in order to make theestablished contract legitimate release, exercising the right of contract rescission isparticularly important. This article is the lifting of the contract of the exerciseprogram problem research, with a view to our academic circles and judicial circlesgenerated in the contract on the lifting of the exercise program have a morecomprehensive understanding of the problem. This paper is divided into four parts todiscuss.The first part discusses the exercising the right to cancel a contract main body,first from the limit of necessity, definition of the qualification of two aspectssummarized the exercising the recission right subject, then discusses the differentsituations to lift right, respectively is the defaulting party is entitled to terminate,force majeure, rebus sic stantibus situation, both sides both default situationrescission of attribution. The author thinks, should not give the defaulting party the right to terminate the contract, irresistible circumstances both of the parties have aright to terminate. Change of circumstances circumstances the parties may appeal tothe court to terminate the contract, but shall not terminate the contract; both partiesbreach, responsible to the purpose of the contract can not realize the party does notenjoy the right of cancellation.The second part describes the object of exercising the right to cancel a contract.And from five parts, respectively is definitely established and validated the exerciseof right to terminate a contract is the object, has established the executory contract toexercise the right to rescind the contract object, single and continuous contract isapplicable to lift system, but not to exercise the right to rescind the contract objectThe third part discusses the time of exercising the right to cancel a contract. Firstelaborated the contract to exercise the right to rescind the properties of time, theauthor thinks it belongs to the scheduled period. Then further discusses theex-dividend scheduled period length, law interpretation [2003]7, the provisions ofarticle fifteenth can be reference, but based on the contract type diversity, asstipulated in the contract law to each specific scheduled period, when the partiesagreed on their own is the best choice. In addition to the scheduled period of starting,the author thinks to should since the termination date of occurrence. The right ofcancellation date identification, the author thinks that should be the" contract law"provisions of article ninety-fourth of the legal reasons, the third section of the delayedrelease, should be relative to the right people notice within a reasonable time after notfulfill the right to enjoy right of cancellation. In addition the author believes that therelative people urged procedure cannot be used as rescission destroy the necessaryprocedures.The fourth part discusses the contract to exercise the right to terminate theprogram--notification procedures, which is the core of the whole paper. The authorfrom the ten aspects of the notification procedures discussed, first to notice legalelaboration, to the legal provisions to distinguish; secondly to existing problems aresummarized, respectively, is because of the notifying party fault delay notice oftermination is valid, the non-breaching party urged to fulfill and inform relationship,eliminate exhortation special effect, notice to remove the model is applicable to exercise the right to rescind the lawsuit, lawsuit relieving way in informing thecognizance, court ’s nature, the effective date of the contract. On the controversial"lawsuit relieving way in informing the cognizance of" action", lifting the dissolutionof contract in the effective time" and other issues, through examples of the judgementof court case, to understand the reality of the court’s approach, and on China’slegislative problems, such as the loopholes in the law, legal terminology is not theproblem such as the standard, put forward their views and suggestions. Tocomprehensively elaborated contract to relieve the power to exercise program, tomake reader understand.The fifth part discusses the contract to exercise the right to terminate theprogram--relative to dissent. The relative party general paper, discusses its concept,content, object, form; secondly discusses the relative effectiveness of dissent dissentexercise, contract in the process state, relative objection time limit. The relative partyexercise effect, the author further explained through judicial case.Exercising the right of contract rescission procedure problem research belongs tothe legal research system class. Therefore, the legal theory and judicial practice isessential. But the author thinks, the quote judicial case not only spend a lot of ink,occupy more space, and the expected effect is not significant. To illustrate the case,the author in the text only proper references to court judgments, and references to theliterature indicate case source, for readers to check, understand the specific facts ofthe case.The above is the main contents of the thesis are outlined, and hope to help thereader on a preliminary understanding.
Keywords/Search Tags:Rescission Right of Contract, Exercise Procedures, Right Exercise Period, Notice of Termination, Objection to Terminate Contract
PDF Full Text Request
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