A Study On The Objection System Of Rescission Of Contract In China

Under the current "Contract Law",it shall notify the other party when terminatingthe contract in accordance with the relevant provisions.The contract is terminatedwhile the notice reaches the other party. Have objections to the rescission, he mayrequest the people’s court or an arbitration institution to confirm the effectiveness ofthe rescission.This provision is called the objection system of rescission of thecontract by domestic scholars.This system is unprecedented in comparison,therefore itis unable to avoid the controversy on the theory and practice. This paper will make acomprehensive introduction and analysis to it from the theoretical basis of the systemcombined with its use in practice.This paper is divided into five parts.The fist part introduces the establishment and value basis of the objection systemof rescission.Before the implementation of current "contract law", the law emphasizedon the actual performance of the contract and was strict with the rescission of thecontract.A direct written notice of the part with rescission right can not realize hispurpose.He must ask for the judicial proceedings.Under the current "ContractLaw",the contract will be terminated as soon as the notice reaches the other part.Theobjection system of rescission is set up for preventing rescission rights abuse andachieving the balance of interests in the parties to the contract.The second part introduces the legal nature of the objection to the rescission ofthe contract.There are many disputes over this topic.This paper argues it can only becounted as a kind of special legal provisions, to remind the the other party of raisingan objection. Its direct purpose is to provide direct basis for judicial organs involvedin rescission of the contract.The third part introduces how to raise the objection and its legal consequences.Objection to rescission of the contract shall be made by the the opposite party with theway of litigation and non-litigation.The effectiveness of rescission of the contract willbe a unknown state after litigation objection.If the judiciary decided that the objectionis valid,the rescission of the contract should be invalid from the beginning and therescission party shall be liable for breach of contract.Otherwise,the contract isterminated certainly since the rescission notice reaches the other party.The fourth part analyzes the legal consequences of overdue objection.When theother part raise the objection after the deadline, the court should still review whether the rescission right is legal.The overdue objection can not compensate the defect of norescission right.The fifth part reconsiders the the objection system of rescission of the contractand puts forwards the suggestion of perfecting this system.Comparative law mainlylimit directly rescission party’s behavior to ensure the actual performance of thecontract and have not set up the same rules like our country. The objection system ofrescission in China appears to have some contingent factors.To maintain the stabilityof the existing legislation and the judicial,we should keep this special system andmake teleologische Reduktion for it.On the other hand, we must expand the way ofobjection and clear the overdue objection proceeding in the court’s scope of review.