Research On The Exercise Of The Rescission Right Of Contract

The contract rescission is a very important basic system in China's Contract Law.When the contract is in trouble,the contracting party can break the “legal lock” by exercising the right of rescission,so that it can be freed from the bondage of the failed contract as soon as possible and then regain the freedom of trade.The exercise of the right to terminate the contract constitutes an important part of the contract rescission system.Article 93 to 97 of the Contract Law of the People's Republic of China stipulate the conditions for rescission of the contract,the way of lifting,the term of the exercise of the right of rescission,and the effect of rescinding the contract.However,the provisions of the law is relatively unclear,resulting in the right to exercise the right to terminate the contract,the exercise of the specific way to exercise and define the subject is not clear,disagreement in judicial practice,even deviation in trial practice and legal provisions in the exercise of the contract rescission.In this regard,the academic community is not uniform.On the conditions of exercising the right of rescission,there are three viewpoints in academia,including the theory of “the agreed one excludes the legal one”,“the legal one excludes the agreed one” and “compromise”.there are positive and negative doctrines about whether the court can accept the case without notice and directly appeal to terminate the contract class case;and there are two kinds of doctrines of affirmation and negation in the case of the rescission of the contract due to breach of contract.As for the effect of the exercise of the right of rescission of contract,the theoretical circles mainly discuss whether the contract can be revoked or not retroactively.In the specific trial,according to Article 97 of the Contract Law,and the nature of the specific contract and the performance of the contract,restitution will be taken if possible,and other remedial measures will be ordered if recovery is impossible,which there are no controversy inpractice.The empirical research has found that the most common types of contracts are house sale,house leasing,land contract and loan contract,and most of them were adjudged in primary people's court with a high appealing rate.On the relationship between the exercising conditions of agreed and legal contract termination right,there are defects in the theory of “the agreed one excludes the legal one”,“the legal one excludes the agreed one” and “compromise”.The author puts forward “the degree made decision” theory,which should be more scientific.Judiciary has already denied Article 24 of Judicial Interpretation of Contract Law(II),which has been abandoned.Thus whether the dissolution of contract is headlined overdue or not,judiciary conducts a substantive review to exercise conditions of termination,and accordingly determines its effect.There are more cases that the rescission owner has not notified the opposite party of the suit to terminate the contract than the dissolution of contract filed by the prosecution in practice.Considering efficiency and convenience,judiciary interprets this kind of claim into requesting the court to inform the merger of the discharge noticeand confirmation of the lifting effect from the perspective of the interpretation.In terms of the provisions of “contract law”,China implements notification release mode.The court doesn't have the right to substitute discharger exercising right.If one party breaches the contract,the defaulting party shall not get the right to terminate the contract;if both of them breach the contract,the other party acquires the right to terminate the contract.