Research On Legal Restriction Of Arbitrary Termination Of Entrustment Contract

Article 410 of China's contract Law stipulates:"the principal or the trustee may terminate the entrustment contract at any time.Whereas losses are caused to the other party as a result of the termination of the contract,the loss shall be compensated except that the reasons are not attributed to the party concerned."The exercise of the right of rescission is not premised on the breach of contract by the other party,nor is subject to time or restriction.Only when is there a reason for imputing to one of the parties,the party shall be held liable for breach of contract.Although there are some differences on how to limit the arbitrary termination of this provision,there is no objection to the proper restriction.It is believed that its legal basis lies in the weak legal binding force of the free entrustment contract in the entrustment contract.And any contract is based on trust.The conclusion of the contract itself is in accordance with the principles of law and reasonable.Therefore,in practice,the application of Article 410 should be strictly limited,which can only be applied to entrustment contracts with weak legal binding force,and other contracts with strong legal binding force including entrustment factors should strictly restrict the application of Article 410.This paper analyzes the characteristics of the entrustment contract from the point of view of the restriction of the rights of arbitrary rescission of the entrustment contract,referring to its historical origin,the legal basis and the general situation of the legislation of various countries,and puts forward a path to the restriction of the right of arbitrary rescission of the entrustment contract in our country.There are more than 28,000 words in this paper,except the introduction and conclusion,which are mainly divided into four parts:The first part points out the abuse of the rights of arbitrary rescission of entrustment contract in our country through typical cases in judicial practice,such as "Dalian Pan sues Shanghai Panqi case"and "Yuantong Company v.Wumu Company".And for some commercial entrustment contracts,their rights of arbitrary rescission should be limited.And two issues are put forward to explore:1.How to limit the exercise of the right of arbitrary rescission of the entrustment contract from the applicable conditions?2.How to determine the scope of damages after the exercise of the right of arbitrary rescission of the entrustment contract.The second part traces the historical origin of the entrustment contract,through the vertical investigation of Roman laws,pointing out that the entrustment contract is derived from the agency system in Roman laws,and it is the contract with labor supply as its target.It mainly refers to being entrusted to handle affairs for a disabled friend who is not present and is free of charge.Through the horizontal comparison of Germany,France,Japan and other modern national laws,it is pointed out that for the scope of application of the right of arbitrary rescission of the entrustment contract,many countries adhere to the standard of "free entrustment is the principle,and the compensation and restriction are the exception".The third part examines the legal provisions and theoretical changes of the right of arbitrary dissolution of the entrustment contract in the laws of Germany,France,Italy,Japan and other countries,and focuses on the relevant provisions and theoretical developments of the Japanese law on the rights of arbitrary dissolution of the entrustment contract.This paper studies the "trustee interest" rule and the "last resort" rule in Japanese jurisprudence,and the new practice of Japanese courts.Through sorting out and analyzing,the restriction on the rights of rescission of entrustment contract in various countries is summarized into three types:1.The contract is divided into paid contract and free contract and then limitations are done according to the different types of contracts.2.The agreement between the parties to the effectiveness of the contract.3:Restrictions on the exercise of the right of arbitrary rescission in the scope of the scope of damages.Combined with the judicial practice of our country,this paper intends to discuss and draw lessons from the practice of Japanese courts,and make a type interpretation of the "not attributable to the parties" in Article 410 of the contract Law of our country,which makes the article more operable when it is applied.The fourth part,on the basis of the foregoing,puts forward the idea of restricting the rights of arbitrary rescission of entrustment contract in our country from two aspects:the applicable conditions of entrustment contract and the legal liability of damages.It specifically discusses the limitation of the contract of the paid entrustment and the contract of commercial entrustment from the applicable conditions,and limits the application of the right of arbitrary rescission by the agreement of the two parties.In order to maximize the legal limitation on the abuse of the right of arbitrary rescission of the entrustment contract,this paper discusses the differences between the paid entrustment,the free entrustment and the rescission of the principal and the dissolution of the trustee.