Research On Legal Issues Of Entertainment Contract

China's performing arts industry started late and developed rapidly.The "Broker Management Measures","Business Performance Management Regulations" and their implementation rules have been promulgated to regulate the Performing Arts industry,but they are not enough to solve all the problems related to performing arts contracts.In recent years,disputes over the termination of entertainment brokerage contracts have been widespread.There are still many legal issues involved in the termination of entertainment brokerage contracts: why the legal nature of the contract,whether the contract can be arbitrarily terminated,whether the loss of trust basis can lead to the termination of the contract,how to apply the preservation of acts to the contract of entertainment brokerage,and how to adjust the high liquidation fee when the contract of entertainment brokerage is terminated.Such legal problems need to be solved urgently.The Contract Law does not categorize the legal nature of performance contract clearly.In theory,there are commission contract theory,intermediary contract theory,brokerage contract theory,labor contract theory and mixed contract theory on the nature of performance brokerage contract.Performing arts brokerage contract contains many typical contract elements and should be a mixed contract.It is different from commission contract in terms of compensation and Party qualification,from intermediary contract in terms of obligation undertaking,from brokerage contract in terms of source of remuneration,and from labor contract in terms of insurance payment obligation.There are different opinions about the nature of performance brokerage contract as to whether it has the right of arbitrary termination.Scholars who advocate the theory of entrusting contract believe that performance brokerage contract can be arbitrarily terminated.Scholars who advocate the theory of mixed contract advocate that performance brokerage contract can not be arbitrarily terminated.Performance brokerage contract contains many contract elements,such as entrustment,intermediary,brokerage,labor and so on.The entrustment contract elements can not determine the overall effectiveness of performance economic contract.At the same time,in order to prevent the unfair competition in the performance industry,performance brokerage contract should exclude the application ofarbitrary rescission right of the entrustment contract.As to whether the basis of trust can lead to the termination of performance brokerage contracts,there are many completely opposite practices in judicial practice.Some courts have decided to terminate the contract on the grounds that the contradiction between the two parties is irreconcilable and the contract is difficult to continue to perform.However,there is no sufficient legal basis for this practice and no legal provisions directly invoked.Some courts have ruled that rescission of contracts violates the basic principles of fairness,honesty and credibility,and is not conducive to the sound development of the Performing Arts industry.The basis of trust should lead to the termination of performance brokerage contracts.The performance brokerage contract has personal dependence,and the performance of the contract requires the voluntary cooperation of both parties.If the relationship between the two parties deteriorates and they do not trust each other,the contract will not be fulfilled.At the same time,the performance economic contract belongs to the continuing contract,according to the continuing contract theory,the major reason belongs to the cause of contract termination,and the basis of trust belongs to the major reason for the termination of the performance brokerage contract.In the judicial practice of China's mainland,there are few cases of the application of the act preservation,and there is still a theoretical blank on the application of the act preservation in the performance brokerage contract.Behavior preservation is necessary in disputes over performance brokerage contracts.The application of behavior preservation in performance brokerage contract disputes can alleviate the frequent unfair competition in the performance market,avoid the production and expansion of huge losses of performance brokerage companies,and reduce the risk of infringement of the rights of performance brokerage companies.It is also feasible to apply behavior preservation in performance brokerage contracts.There are judicial practices in the United States and Taiwan and Hang Kong of China to apply the act preservation in the performance brokerage contract,and the revised Civil Procedure Law in 2012 formally introduces the act preservation system,which provides a legal basis for the application of the act preservation in the disputes of the performance brokerage contract.The application of behavior preservation in performance brokerage contracts should meet certain conditions.The preservation of applicable acts should preliminarily prove that the rights and interests of performance brokerage companies have beeninfringed illegally,and its damage is higher than that caused by the adoption of acts of preservation.At the same time,the application of acts of preservation shall not damage public interests.The termination of the contract is accompanied by the payment of liquidated damages.There are usually high Liquidated Damages Clauses in performance brokerage contracts.In dealing with high liquidated damages,there are two ways to compensate according to the agreed amount and adjust according to actual losses and expected benefits.It is against the principle of fairness and good faith to compensate according to the agreed amount.Adjusting the high liquidated damages according to the actual losses and expected benefits can realize the full compensation to the performance brokerage companies,and also can prevent the unfair phenomenon that excessive liquidated damages restrict the development of artists.In determining the specific amount of liquidated damages,the actual loss should be the sum of the training,promotion and publicity expenses invested by the Performing Arts brokerage company,and the available benefit should be multiplied by the average profit of the company during the performance period by the remaining years.