Research On Legal Restriction And Intentional Restriction Of Arbitrary Termination Of Mandate Contract

Article 410 of China's"Cont:ract Law"stipulates that"A principal or an agent may dissolve a mandate contract at any time.A party shall be liable to provide compensation for any losses sustained by the other party due to the dissolution of the contract,except with respect to those losses for which the said party cannot be held responsible." This article gives the parties an unrestricted right of arbitrary rescission.However,due to the legislative model based on the syncretism of civil commercial law,the type of mandate contract has not been carefully classified.Cause the provisions of this article are vague,the scope of application of the right is also not further explained.Therefore,whether it is a civil mandate contract or a commercial mandate contract,the parties may deviate from the mandate contract legal relationship based on the arbitrary rescission right.However,it is precisely because of the lack of legislation that in practice there have been a large number of cases in which the abuse of the right to arbitrary cancel the interests of one party.However,it is precisely because of the lack of legislation that a large number of cases of abuse of the right have been generated in practice.It is a common view of the academic community to restrict the arbitrary rescission of the mandate contract,but there are some debates about the specific restriction methods.Generally speaking,the restriction on the arbitrary rescission of the mandate contract includes both legal restrictions and the intentional restrictions.The legal restriction is to restrict the exercise of the arbitrary right of rescission by means of legislation or judicial judgment by the legislator or the judiciary in the form of statute law or judicial precedent.While the intentional restriction is expressed as the exclusion of the right of arbitrary rescission by the parties to the mandate contract.Since the mandate contract can be divided into different types according to the different elements of the contract,the method of legal limitation and intentional restriction on the arbitrary rescission of the mandate contract cannot be generalized.By analyzing the historical origin of the mandate contract,this paper explores the legal basis of the arbitrary rescission right,and draws on the legislative ideas of typical European and Asian countries,and finally uses the typed method to analyze and discuss the problems.This article is divided into four parts.The first part aims to analyze the phenomenon of the arbitrary rescission of the mandate contract in the social practice of China through the analysis of"Jinyu Real Estate Vs.Sinopec Jilin Sales Company Case"and"Hexin Zhiyuan Company Vs.Jinli Company Case".The first part analyzes the court's attitude towards the legal restrictions and intentional restrictions on the arbitrary rescission of the mandate contract.On this basis,it leads to two problems mainly discussed in this paper.The second part of the thesis aims to analyze the origin and basic theory of the arbitrary rescission of the mandate contract,and use the historical analysis method to trace the legal system of the modern mandate contract to the Roman agent system of its origin,and analyze the history of the unpaid contract of the mandate contract.Then,from the perspectives of trust,autonomy,contract efficiency and the characteristics of continuing contracts between the parties,the paper discusses the existence of the right to arbitrary rescission the mandate contract,summarizing the logical context of arbitrary revoking the mandate contract,and grasping the mandate contract from the source.The third part of this paper uses the comparative analysis method to examine the German law,the French law,the Italian law,and the Japanese law through the horizontal comparison of national legislation.The Japanese law"trustee interests"rule and the"nothing cause"rule are the research focus.In the end,the ways in which countries restrict the right to arbitrarily cancel the mandate contract are:1.Restrictions on the type of contract,based on restrictions on various types of combinations of paid contracts,unpaid contracts,civil contracts,and commercial contracts;2.Restrictions on arbitrary revocation rights;3.Restrictions on the scope of damages in the presence of any right to rescinence.The fourth part of this paper aims to put forward the idea of the legal restriction of the arbitrarily revoking right of the entrusted contract on the basis of the above research,and analyzes the scope of the effect of the intended restriction.In the case of the statutory restrictions on the arbitrarily rescission of the mandate contract,the author discusses the restriction on the contractual contract and the commercial mandate contract,and discusses the restriction method when the mandate contract has other contract elements to make the mandate contract an unnamed contract.However,in view of the intended limitation of the arbitrarily rescission right of the mandate contract,it is proposed that the effect of the arbitrary rescission right in the civil mandate should be excluded,and the effect of the arbitrary rescission right in the commercial mandate should be recognized.