The Research On Objection System Of Contract Rescission

After establishment and execution of contract,it will be binding on the both parties.Adherence to the principles of the contract require the parties shall fully fulfill their obligations and not free to terminate the contract.But in practice,not all contracts can continue to perform in accordance with the agreement,there will be various reasons lead to difficulty or impossibility to fulfill the contract.At this moment,The law gives one or both parties the rescission right to terminate the contract to get rid of the constraints of the contract.In order to make the equal rights of both parties,prevent abuse of the rescission right,the law gives the objection right to the opposite party that when the contract should not be terminated,he may request the people's court or an arbitral agency to rule on the validity of the contract rescission,it was called the objection system of contract rescission by the scholars.Since the regulation of the objection system of contract rescission is not clear enough,leading too many disputes in the theory and practice.The idea of this paper is from the author's confusion and concern of the objection system of contract rescission in the judicial practice.The purpose is to make a research on the objection right of contract rescission,combined with the relevant academic theory and judicial cases,and then seek the effective way of improvement to the objection system of contract rescission.This article is divided into four parts.The first part,analysis on the necessity of objection system of contract rescission.From the beginning of the setting of objection system,there have always been disputes in the judicial practice.Based on the understanding of the essence of the Article 24 of the “judicial interpretation of contract law ?”,some scholars proposed that the objection system should be abolished.The second part,analysis the legal nature of the objection right.There have been many disputes exist in the theoretical area.Including the right of claim,the right to remove the contract rescission,the objection right of forming right,the right to appeal.This paper holds that it is neither a civil law right,nor a procedural right,it's just a claim that the opposite party has objections to the contract rescission.The third part,the exercise of the objection right.The objection of contract rescission includes two aspects of entity and procedure.Objection right should be exercised by the opposite party,he can raise an objection to the man who send the notice of contract rescission.or by way of litigation,it is said that to raise an objection to the party who send the notice,does not have legal effect.Objection period is divided into agreement on dissent and legal objections period in three months.objections right should be exercised within the objection period,overdue,should not be supported by the people's court.The forth part,analysis the effectiveness of the objection right of contract rescission.There are two kinds of views in the theory circle.The first kind of view is that the objection prevent the rescission of the contract,overdue the right extinguished,then the contract is terminated.The second view thinks that the objection is just a claim,can not prevent the contract rescission,Whether the contract is terminated or not,depend on the rescission right.The fifth part,give some feasible proposal to improve the objection system.The scope of the objection system of contract rescission should include the termination behavior that does not have the rescission right;To increase the ways of exercising the objection right;Clear legal effect of overdue exercise of objection right.