Research On Exercising The Right Of Rescission Of Contract And The System Of Dissent Period

Article24of Interpretations of the Supreme People’s Court on CertainIssues concerning the Application of Contract Law of the People’s Republic ofChina(Part Two)(Interpretations of Contract Law Ⅱ,ICL Ⅱ) stipulates that wherethe parties have dissents in respect of rescission of contract or debt offsetting asstipulated in Article96and99of the contract law, but put forth such dissents andbring a suit with the people’s court upon the expiration of the specified dissent period,the people’s court shall not uphold; where there is no dissent period as specified bythe parties, and the suit is filed with the people’s court three months after receiving thenotice of rescission of contract or debt offsetting, the people’s court shall not uphold.In practice, there are different understandings on the above article. The key issue iswhether the court could make no substantive review, dismissing the counter-party’sclaims directly without considering whether the stipulated or agreed circumstances aresatisfied when the counter-party brings a lawsuit beyond the dissent period afterreceiving the notice of rescinding contract. Many famous scholars have contradictingopinions. And a large number of awards with inconsistent views come up in Shanghai,Guangdong, Zhejiang and Beijing. The thesis begins with a case of a sale contract ofcommercial housing, trying to make a legal analysis and theoretical deliberation onthe characterization of rescission right of contract, the right of dissent and the dissentperiod, furthermore, to make the following suggestions on the system of contractrescission on the basis of rethinking the value judgment and the system design ofArticle24of ICL Ⅱ. Firstly, the interpretation on the stipulations of the dissentperiod should be restricted, that is, where the party without the right of rescissionmakes a notice of rescinding contract, the stipulations of the dissent period do notapply and the court should make a substantive review on whether the parties have the right of rescission. Secondly, Article24should be eliminated from ICL Ⅱ, in otherwords, it is of no necessity for the system of dissent period to exist. Both parties of thecontract are entitled to bring an action promptly to contain each other and stabilizetheir legal relationship according to their own litigation interests. Comparativelyspeaking, the party with the right of rescission, as a party who could change the legalrelationship is more obligated to request the court to confirm the status of the legalrelationship in the circumstance that the counter-party does not reply in a reasonableperiod.