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Abolition Research On Objection System Of Rescission Of Contract

Posted on:2018-03-15Degree:MasterType:Thesis
Country:ChinaCandidate:C Z TanFull Text:PDF
GTID:2346330515986844Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The dissolution system of the contract constituted by Article 96 of the Contract Law of China and Article 24 of the Judicial Interpretation ? of Contract Law has a great controversy in the theoretical and practical circles, which leads to the very inconsistent and serious consequences of the judicial application Damage the judicial authority and the interests of the parties. However, the existing three drafts of the Civil Code still have the provisions of the system. Therefore, it is necessary to systematically deconstruct the system of dissolution of the contract and to demonstrate the scientific nature of its constituent elements and the coordination of the whole system. Based on the method of value analysis and comparative analysis, this paper focuses on the empirical analysis method, and finds out all the judgments concerning the system of dissolution of the contract since the promulgation of Judicial Interpretation ? of Contract Law. To conduct a thorough analysis, as the basis for writing data and point of view evidence of an important empirical basis.This paper starts from the dynamic point of view of the connotation and essence of the system of dissolution of the contract and the exercise mode, period and effect of the system operation,and argues that the contract dissolution system is not necessary and can be abolished.From the contract to lift the objection of the legislative purpose and operational reality,the gap between the two larger. By integrating the views of the scholars on the connotation of "objection", the objection includes the negation of the establishment of the right to terminate the contract and the defense of the exercise of the right to terminate the contract.Objection is only an ordinary form of defense, there is no unique system value. Set the contract to lift the objection system, the purpose of two: First, to protect the interests of the other party, to avoid the lifting of the parties to cancel the right to terminate the contract;Second, as soon as possible to stabilize the contract relationship and improve transaction efficiency. However, the operational reality of the system is expected to be difficult to achieve the purpose.From the nature of the dissolution of the contract, the opposition system lacks the core of the system. Through the analysis of the views of "the right of claim", "the right to speak", "the right to oppose (defend)" "confirm the right of action" and "obligation", we can see that the dissolution of the contract does not have an independent system Form, the lack of inherent system kernel. The contractual dissolution of the contract law in our country is only a matter of "drawing attention to the provisions" of the parties, and it is not necessary to exist as an independent legal system.From the way of dissolution of the contract, the objection system does not have a specific procedural benefit. (In litigation, arbitration and presumption between the two parties) and "litigation" (only through litigation or arbitration),that the counterparty can be in litigation, arbitration and to the party To propose a choice between objections.Compared with other systems, the dissolution of the contract has no special procedural interests, and it is not necessary to set up an independent legal system.From the nature of the object of dissolution of the contract, the objection period is unscientific. This paper analyzes the viewpoints of the statute of limitations and the exclusion period during the dissenting period,and argues that the objection period is unscientific,brings many contradictions and applicable problems,and demonstrates the non-scientific nature of the contract dissolution system from the angle of the period.The objection system has been completely blurred from the plight of the effectiveness of the dissolution of the contract. Because of the judicial practice, the part of the controversy over the contract to lift the vast majority of controversy, so this part is also the focus of this part of the discussion. The core issue is whether the court or the arbitration body conducts a formal review or a substantive examination of the objection. Through the analysis of the form of review,we can see that it is extremely scientific,so the court or the arbitration body should be a substantive review of the objection. However, if a substantive review, then directly lead to dissent and even the objection itself does not exist meaning,the objection completely blurred. Based on the substantive examination, the author argues that the contract should be invalidated during the period of "the validity of the contract"and "the validity of the agreement", and concluded that the contract should be invalidated in the meantime and thus fully fit with the contract cancellation system, proving that there is no positive effect And the negative impact of great. Under the premise of substantive review, the validity of the overdue objection has nothing to do with the validity of the objection period. Therefore, the contract dissolution system is superfluous and can be abolished.In terms of the functional substitution of the dissolution of the contract, many of the functions of the opposition system can be covered or replaced by a contract law system.The above parts of the contract to resolve the elements of the dissolution of the analysis and questioned, are "broken" category. If the "broken" can not "stand",then the system must continue to play a role. Therefore, it is necessary to demonstrate that the value or function of the objection is an alternative, or that both the system already contains its function, which is a category of "legislation". In fact, China’s "Contract Law" has been expected to default, urge to lift the system can replace the objection system function, such as clarity can be directly through the litigation to terminate the contract,the objection function can be "contract law" existing system , So the opposition system has no need to continue to exist. To "Internet+" era of consumer counterattack, for example, the application of the objection system has been greatly squeezed.From the point of view of comparative law, the system of dissolution of contract belongs to our characteristic system, and there is no such system in developed countries or regions, and even if there are "objection" provisions, it is different from our contract dissolution system. Because the system is difficult to self-discipline in the theory of the difficulties caused by the application of the proposed abolition of China’s current contract dissolution system, in the future "Civil Code" does not require the system.
Keywords/Search Tags:Contract law, contract cancellation, Objection system of rescission of contract
PDF Full Text Request
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