Research On The Right Of Arbitrary Termination Of The Contract Of Entrustment

This paper focuses on Article 410 of the Contract Law of the People's Republic of China(hereinafter referred to as "Contract Law"),taking the arbitrary termination right of the entrustment contract as the object of study.The right of arbitrary rescission gives the parties of the entrustment contract the right to terminate the contract at any stage of the contract without any reason.This provision increases many problems in judicial practice.For that Article 410 does not distinguish whether the entrustment contract is paid or not and give the parties the right of arbitrary termination,and there is also a lack of specific provisions on the application and scope of damages,and no final conclusion as to whether the arbitrary termination right can be agreed to waive,so there are some problems in practice,such as abuse of the right of arbitrary rescission of the contract subject,evasion of liability for compensation,different judgments of the court in the similar case,and so on.In order to not only protect the legitimate rights of the parties to the entrustment contract,but also maintain the fairness and justice of the law,this paper attempts to study the right of arbitrary rescission.The first chapter summarizes the basic situation of arbitrary rescission right.First of all,it introduces the basic theory of arbitrary rescission right,including the specific concept and the main legal characteristics;secondly,it focuses on the origin and development of the arbitrary rescission right.The arbitrary rescission right originated from the appointment system in Roman law,followed by German law,and further developed on the basis of succession for France,Japan,Italy and other civil law countries.The second chapter discusses the reasons why the arbitrary rescission right can keep existing from the Roman law period to the present.The first is why the right of arbitrary rescission arises.Because the entrustment contract came into being between the parties who trusted each other and can only be gratuitous during the Roman law period,the contract has weak binding on the rights and obligations of the parties and can be lifted at will.The second is why the right of arbitrary rescission can continue,that is,the significance and value of its existence.This article argue that the reason is the arbitrary termination right reflects the spirit of freedom of the contract,and to a certain extent,the pursuit of contract efficiency.The third chapter focuses on the problems existing in the legislation and judicature of the system of arbitrary termination right,and reflects on them.With social change and the development of market economy,the social and economic background of Article 410 has changed,which makes it difficult to meet the needs of the development of the times,making the provisions too principled and vague to deal with various problems arising from judicial practice.The greatest dispute about the system of arbitrary rescission right lies in its scope of application and scope of damages.Among them,the innovation of this paper lies in the in-depth discussion of the extension of "non-imputable cause",in order to clear the subject of liability for damage compensation.In the fourth chapter,in view of the problems discussed above,through the analysis and reference of comparative law,this paper puts forward some suggestions for improving the system of arbitrary rescission right.It includes clarifying the liability for damages and restricting the exercise of the right of arbitrary rescission.