A Study On The Retroactive Effect Of Rescinding Contract

In the system of rescission of the contract,The retroactive effect of the contract termination is an important problem which involves the dissolution of contract creditor’s rights and debt relationship before treatment.As rescission of contracts is primitively applied in CONTRACT LAW of our country,it cause the academic controversy and the applicable law in the judicial practice.As the core problem in system of rescission of contracts,its worth to be researched.This paper cardings the advantage of the two legal systems and discusses judicial practice in our country by using comparative analysis.Because there are many provisions in the contract system of various countries, the civil law and common law countries have great difference, especially the provisions on termination of the contract have retroactive effect has national characteristics, worthy of our comparison and reference. The point of view of this article is "contract part retroactive theory", namely the contract due to the rights and obligations of retroactive elimination, the remedial rights and obligations still exists, the other party may still be on the basis of relief provisions to claim damages for the breach of contract view. In the process of argumentation, I mainly through the analysis of the possibility to compare the pros and cons of various theories and practical application, to demonstrate the rationality of "part of retroactive theory", and puts forward some suggestions to perfect the system in our country.The first chapter is general provision.The context has defined the scope of this paper is statutory release contract.Through analysis of the concept and type of termination of the contract.Rescission of agreement is one type of termination of the contract,but discussing its retroactive has no real meaning.Meanwhile,the context clears definition of termination of the contract by discussing the difference between the contract termination,contract revocation and the contract invalid.The second chapter is the research of the system of contract rescission retroactivity.Through reviewing legislation in China and foreign countries and analyzing relative theory,the dissertation holds that the provisions about the retroactive effect of contract in law of China is too vague and uncertain. The point of view of this context is that contract termination has part of the retroactive effects,that is to say, retrospective elimination of original rights and obligations,but procedural settlement clearance clauses still exist.The third chapter is theory of the retroactive effect.This chapter mainly discusses the choice of the doctrine to become the legislative basis in our country.Combining with the national conditions and judicial practice in our country cases,on the nature of the contract,maintain the market transaction security,compliance with the principles of fairness and justice,the dissertation holds that "retroactive" more fit the current legislation of our country needs.The fourth chapter is the judicial practice of the retroactive effect.This chapter analyze the meaning and nature of restitution of original state.Restitution of original state refers to the state of parties’property rights restitute to the state of original rights and obligations,the main scope of restitution is the scope of the contract has been performed. The basic contents include not only the return of original property but also the recovery value form.The possibility of restitution can not be used to determine whether has the retroactivity of contract rescission.Meanwhile,this chapter also explains that compensation for damages of the available benefits should be supported after rescission of contract by comparing the foreign legislative and judicial practice.Among the above four chapters.the third chapter is the most important part.This paper will adopt the view that rescission of contracts has parts of retrospective effect.Hoping it can be helpful to the legislative and judicial practice in our country.