The Study On The Limit Of The Right Of Termination Without Any Reason In Mandate Contract

Right of termination without any reason(hereafter referred to as “the Right”), as a special reason of the termination of contract, is supplement of the general right of statutory termination. The application of the Right and the right of statutory termination is not contradictory. There is no general stipulation of the Right in the general rules of Contract Law, which is included in the specific parts of Contract Law and several special laws. As a typical service contract, the Right in mandate contracts is representative. The stipulation in Contract Law of China, which assimilates the theory of Efficient Breach of common law and the core thought of the Right in civil law, can't exert positive effects of this system and causes problems in the application because of the excessively sweeping stipulation. There are several theoretical controversies about whether to limit the enforcement of the Right in mandate contracts and how to set appropriate restricted conditions. So, proceeding from dispute in the judicial application of the legal provisions, this article emphasizes the comment on the scope of current system, the force of agreement which excludes the application of the Right and the scope of compensation for damages. In practical terms, this article is divided into four parts to discuss this topic:The first part introduce the application of current system in Contract Law of China, including the jurisprudential fundamental, conditions and legal consequence of the exercise of the Right.The second part analyses the scope of the Right's application. On the one hand, this article proves the rationality of the exercise of the Right with the qualitative change of mandate contracts and inequity phenomenon caused by the exercise of the Right. In the meantime, the author also holds that the Right in mandate contracts should be limited only when the interest of trustee and the third party are tied in the contract. On the other hand, this article analyses the force of agreement which excludes the application of the Right. Without explicit stipulation in Contract Law, the author holds that this agreement is void in principle, but valid in the special cases.The third part focuses on the analysis of the scope of compensation for damages in mandate contracts. At first, the article demonstrates the nature of the compensation for damages. In detail, the compensation for damages should be regarded as legal consequence of the exercise of the Right, but not the condition. Secondly, the author proves the possibility of compensation for benefit of performance by comment on the dispute about the scope of compensation for damages. At last, the author holds that support the request of compensation for acquirable interests is on condition of the interest of trustee and the third party.The last part raises several legislative suggestions about the application of this institution by the way of comment on current legal provisions. In detail, firstly this article proves the necessity and feasibility of general stipulation in the general rules of Contract Law. Secondly, the author puts forward two paths to limit the exercise of the Right: the first path is setting absolute limit on the condition of the interest of trustee and the third party, the second one is amendment of the scope of compensation for damages in special cases.