A Study On Qualitative Problems Of The Liability In Restitution After The Contract Dissolution

There have been a great many cases of contract dissolution in China's juridical practices.However,more detailed provisions have not been stipulated in the legislation with respect to the liability in restitution,which is one of effects resulting from the contract dissolution.Problems,such as the connotation and scope of the liability in restitution as well as its relations with the retrospective effect,and even the application of specific rules have not been mentioned.Legislative provisions in a few words have given rise to several long-term disputes regarding the liability in restitution as a result of the contract dissolution in the academic world and judicial practices.In judicial adjudications,owing to lack of identical applicable standards,trial results given by various courts differ greatly with each other.Because different judgments would damage the practical interests of contract parties,we need to especially pay attention to this problem.At present,no consensus on the knowledge of contract dissolution has been reached.The direct effect theory established on the basis of dissolution of retrospective effects has been supported by a majority of people among a number of different arguments.However,this theory has been severely assailed by scholars due to the logical paradox of itself and lack of protection for contract parties.Furthermore,with the tendency changes of extraterritorial legislations and significant effects of liquidation relations in resolving logical difficulties,it is hard for the traditional theory of direct effect to convince people.Even worse,the constant improvement and amendment of this theory has failed to stop the disputes.After evaluating the direct effect theory from many perspectives,scholars still found that many aspects of this theory should be taken into further consideration.In conclusion,due to the legislative vacancy,frequent occurrence in practices,and theoretical disputes,it is a necessity to study the qualitative determination and applicability of the liability in restitution arising from the contract dissolution.However,it is inevitable to interpret the basic legal effects of contract dissolution before studying these problems logically.As a result,this article can be divided into the following two parts:Based on the basic theory of contract dissolution system as the starting point and clue,the concept of contract dissolution was firstly introduced in the first part.Meanwhile,relations between contract dissolution and contract termination were illustrated to clarify the connotation and extension of contract dissolution.At present,China's Contract Law has not adopted the legislation model specified in the theory of traditional civil law that would separate the termination from dissolution.However,these two concepts significantly differ with each other in essence.Furthermore,strictly distinguishing these two concepts and discussing the dissolution within the scope of instant contract can not only make the concept and application of law more concise and clear,but also serve as an integral part to divide the extension of dissolution system.Secondly,the fallacy where contract relationship was regarded as the dissolution object was pointed out and analyzed.By jurisprudential discussion,it came to a conclusion that dissolution object should be deemed as original rights and obligations.Then,the article illustrated that it would be more reasonable to establish the contract dissolution system under the interpretation route without retrospective effect.Meanwhile,it proved that there was no inevitable causal association between the liability in restitution and contract dissolution relying on extraterritorial legislation and jurisprudential basis.Next,five basic theories regarding dissolution effects were introduced and analyzed by the author,primarily concentrating on two most controversial theories: direct effect and liquidation relation.Following a variety of methods including literature research,logical analysis and semantic research as well as combined with the objectives and values of contract dissolution,tit-for-tat views of these two theories were analyzed and judged to explain the rationality of the liquidation relation theory.In the meanwhile,by introducing the changes of extraterritorial legislations to study the development trend of foreign theories,a conclusion was drawn that it was more reasonable and feasible to adopt the liquidation relation theory to interpret the legal effects resulting from the contract dissolution.The second part,as the emphasis this article focused on,firstly defined the connotation of the liability in restitution.Considering the target that the liability in restitution intends to achieve and the intention of contract parties,the article pointed out that the liability in restitution should be interpreted in a broad way,including restitution of original items and value compensations in the event where the restitution of original items is not available.Then,the property of the liability in restitution was analyzed.By comparing advantages and disadvantages of three theories,a conclusion was drawn that it would be more reasonable to determine the claim right of the liability in restitution as an independent right on the basis of the liquidation relation.Moreover,the scope of the claim right of the liability in restitution was identified.By drawing overseas experience and relying on the principle of “overall restitution”,a reasonable restitution and payment scope was established.Consequently,supporting measures concerning the system of the claim right of the liability in restitution was evaluated and studied.As to the defense right of simultaneous performance and assuming of liability to guarantee,the rationality of application was proved according to the concept of identity under the liquidation relation theory.At last,according to reasonable opinions listed above,current legislative provisions that need to be specifically refined and regulated were concluded.Echoed with the contents illustrated in the above and responding to the theoretical and practical difficulties,the conclusions were aimed to improve the legislation for the claim right of the liability in restitution and bring benefits to the application of juridical practices.