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Research On Several Problems Of The Termination Of The Contract

Posted on:2016-03-18Degree:MasterType:Thesis
Country:ChinaCandidate:C F LiFull Text:PDF
GTID:2296330464968207Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
A valid contract would have an equivalent legal binding on both parties, and any party shall comply with the laws made by themselves without modifying or terminating at will. But when there being some special cases, the continued existence of the contract is adverse to both parties or the value foundation of the existence of the contract has been lost, the law should allow the parties to free ourselves from the contract, to avoid the deadlock of the contract, thus to avoid the waste of social resources, which can let the parties to end the rights and obligations under the terms of the original contract in a faster and better way. To avoid the confusion and disorder of the termination of the contract, a scientific and reasonable contract termination system should be established, which is of equal importance to the scientific contracting system. It gives a normal exit channel to the parties of a contract from the signing of the contract, to evade risks, which, in fact, is more conducive to encourage trade.This paper takes the perspective of the termination system in the contract law of our country. While analyzing the loopholes and defects of the current legal system, it also points out that the deficiency in the legislation has brought many difficulties to the judicial practice, putting forward the corresponding ideas to resolve or improving proposals, which is analyzed with the rationality. This paper takes the exploration of problems as the starting point, based on the analysis and resolution of the problems, in order to improve the relevant system frame of China’s contract termination. This paper consists of three parts:preface, text and conclusion. The text is divided into three chapters.The preface introduces the present situation of the research of the contract termination system, and the significance and the innovation of this paper.The first chapter is "the main body of the right of rescission of the contract". This paper starts from the current judicial practice dilemma resulting from the fact China’s current legislation limits the main body of the right of the rescission of the contract to the observant party. It analyzes and understands the deep-seated reasons of the constraints of the main body of the right of rescission from the height of the pursuit of legal values. On this basis, it puts forward the corresponding solutions, namely, extending the main body of the right of rescission to the party in breach conditionally, and demonstrates the rationality.The second chapter is "the exercise and restriction of the right of rescission of contract". This chapter is divided into three sections: the exercise period, ways, and restrictions of the right of rescission. Each section is carried on according to the mode of the defect of legislation, practice troubles, and improvement and suggestions. Firstly, it analyzes the loopholes that the current legislation hasn’t stipulated specifically the exercise period of the right of rescission, as well as the troubles to the judicial practice, and puts forward suggestions to specifically stipulate the legal time limit of the exercise of the right of rescission be one year.Secondly, it analyzes the different legislation modes of exercising the right of rescission and the legislative defects of China, putting forward the specific solutions to guide the judicial practice. At last, regarding the exercise of the right to dissent, on the basis of the analysis and understanding of the second judicial interpretation of contract law of the twenty-fourth article, it criticizes some previous existing theories, making clear the direction of the judicial practice should adhere to.The third chapter is "legal consequences of the rescission of the contract". This chapter takes the processing steps after the rescission of the contract as the clue, with the discussion of basic theoretical problems as the relationship between restitution and retroactivity, which is the starting point, with the further discussion of the determination of the scope of compensation after the rescission of the contract, which has the most controversy. Then it puts forward some individual compensation principles; at last, it discusses the application of the terms of the breach of contract damages after the rescission of the contract, which has a big conflict to the judicial practice. It argues that they should be allowed to be used together, and demonstrates the application relationship of the compensation fees and the breach of contract damages.
Keywords/Search Tags:contract rescission, the right of rescission of the contract, conseqnences of rescission, breach of contract damages
PDF Full Text Request
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