A Study On The Exercise Act Of Rescission Right Of Contract

The rescission right of contract is a key for the right entity to escape from thecontract when the purpose of the contract can’t be realized. As soon as the rescissionrights exercised, the contract relationship is extinguished. The exercise act ofrescission right of contract is the tie between rescission reasons and rescissioneffectiveness, and it also played a very important role in the entire rescission systemof contract. Only if the right entity goes through according to the reasonableprocedure to rescind the contract, can it get the rescission effect. In this way, thecontract relationship will be extinguished. The exercise act of rescission right includewho have the right to exercise, how to exercise and when to exercise, etc. Thispointed out the direction for the right entity on what ways or methods to use to rescindthe contract. This thesis leaves the basic theory analysis on the rescission right ofcontract aside, only focus on the study on the exercise act of rescission right ofcontract, in order to get a panoramic and deep understanding on it. The thesis wasdivided into five parts as follows:The first part of the thesis analysis the exercise entity of the rescission rights ofcontract. The thesis clearly tells us that the rescission right shall be exercised byoneself, or by authority, or by the law or regulations’ stipulation, or by the personappointed by the court. Through the narrative analysis, the thesis gives out theconclusion that the defaulting party should not have the rescission rights of contract. The second part of the thesis analysis the object of the exercising the rescissionrights of contract. And it put the emphases on whether the following kinds of thecontract can be the object of exercise the rescission rights: the continuous contact, thecontact which is established but not come into effect and the unilateral contract.Finally come to the decision that all the above contracts can be the object of exercisethe rescission rights.The third part of the thesis systematically studies on the exercise methods of therescission rights of contract. Firstly, it compared three kinds of the rescission methodswhich all of the countries are used. They are the way through court decision, the waythrough the notification and the way through automatic. Through the abovecomparison, the thesis confirms that the court decision way rescission will be usedunder the circumstance of substantial changing, and the notification way rescissionwill be used under other circumstances in China. After this, the thesis analysis theforms of the notification way of rescission right in China. This part put the emphasison analysis on the point that without the notification, the one who have the rescissionrights can directly rescind the contract through litigation or arbitration. For the relatedcontract, it also narrates and analysis on how to determined the time of rescind thecontract, whether the service by publication will be deemed as the rescind notificationand whether the judgment can rescind the contract directly.The fourth part of the thesis analysis the exercise period of the rescission rightsof contract. Firstly, the thesis divided the exercise period of the rescission rights intofour kinds, and gives out the conclusion that the legal definition of rescission right ofcontract is the scheduled period. then, the thesis analysis the beginning time and thetime limit under the above four kinds of the period. Through the analysis on the thirditem of the article94of The Contract Law “one party to the contract delays inperforming the principal debt obligations and fails, after being urged, to perform themwithin a reasonable time period”, under the circumstance of the legal statutoryrescission, the exercise period of the rescission right shall begin at the day that theurged reasonable time period is passed. In case the law has not stipulated or theparties has made no agreement upon the exercise period of the rescission right, under the circumstance of the counterpart has urged another party, the reasonable timeshould be determined by the interested party himself or determined by the judge in hisdiscretionary power; under the circumstance of the counterpart has not been urged, thescheduled period of the rescission right of the contract will be limited within one year.The fifth part of the thesis theoretic analysis the limitation of the exercising therescission rights of contract. And draw the conclusions as follows: the exercise ofrescission rights can’t attach with the terms or limitation period, and can’t bewithdrawn; the rescission right can’t be reused after one abandon the right; therescission right can’t be used when one party intentionally make the counterpart breakthe contract.