The Term Of The Exercise Of The Right To Terminate

The main purposes of this article including two aspects,firstly,there are unreasonable content hard to understand why the Art.15(2)in the Interpretation of the Supreme People's Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses(Hereinafter referred to as Interpretation of the Sale of Commodity Houses)ruling the right to discharge within a term like 3 months or 1 year.This formulation does not have enough convincing reasons and its application in the judicial case can easily lead to a contract deadlock problem.Basic of this,this article is against other non-commercial housing transactions in the contract disputes related to the exercise of the right of termination to apply the provisions of Article 15 paragraph 2 of the judicial interpretation.In addition,General Provisions of the Civil Law of the People's Republic of China(Hereinafter referred as General Provisions of the Civil Law)distinguish between the period of the exercise of the right of revocation and its starting point different from each other according to different revocationcauses.Different formation right should apply to different periods of exclusion.The period of exercising the right of termination should not apply to the Interpretation of the Sale of Commodity Houses or the stipulation of the time limitation of revocation right under the Contract Law.The second aspect is to solve the specific application issues of the Article 95,paragraph 2 of the Contract Law of the People's Republic of China(Hereinafter referred as Contract Law),that is,in the case of the exercise period of the right to terminate has not been provided by law or without the parties agreement,how to apply the law accurately to determine the exercise period of the termination right.The key to this problem is to solve the necessity and rationality of the reminder,and how to determine the “reasonable limitation period”.The extended question is how to regulate the exercise period of termination right and when to start.First of all,the question whether the reminder is the necessary element in the criterion of the exercise of the right of termination,that is,whether to give the relative party the "remind right".To this issue,there are three viewpoints among scholars:(1)Necessary theory;(2)Remind and specified deadline theory;(3)Remind but can't eliminate the right of termination theory.This article argues from the aspects of legislation and jurisprudence and agrees with part of the latter two theories of its understanding of the reminder,holding that the opposite party can do reminder or not,but Reminder can't be used as the necessary element of Article 95,paragraph 2of the Contract Law.Under this premise,the existence of the reminder has both emphasis on the protection of both sides of the contract,whether the reminder reasonable or not depends on the determination of a reasonable time limit.Secondly,there are two main viewpoints on the determination of the reasonable period.(1)Parts of scholars and judges believe that the15 th of the Interpretation of the Sale of Commodity Houses should be used by analogy,or the similar viewpoint is that it should be applied by analogy that the provision of the right to revoke of Contract Law.The result is that the right to terminate should be exercised within 1 year.Another point of view disagree with analogy,but based on different consideration and methods,there are mainly four ways to determine the duration of the exercise of the right to terminate.(1)It is believed that the reasonable duration should judged according to the specific circumstances of a contract,cannot be determined by the right of termination unilaterally,the other party has the right to defense the exercise of the time limitation if he has questions.(2)Holding that the reasonable period meansthat in the process of performance of the contract,the parties should take a common attitude to treat or deal with the time limitation,should base on the circumstances of the cases,the nature of the object of the contract,the habit and purpose of dealing and a series of specific circumstances,but can't decided uniformly.(3)It is considered that the application of reasonable period needs to be supplemented by value,and the determination of it belongs to the judge,who should discrete base on the case,but can't expect to give a definite and concrete answer.(4)Consider that,in the light of the "designation of an appropriate period" in article No.350 of the German Civil Code,the terminationparty may designate the appropriate period according to the actual situation,when the termination party is lazyto designate or does not make a effective designation,the judge can decide the contract termination right's exercising period according to the contract nature and the trading habit by discretion.In this article,holding that there are similarities and some points of view between the viewpoints of the(2)and(3),but according to them,the determination of the exercise period of the termination right is still too abstract.Base on the judge of reasonable period,this article holding that,it is more reasonable to give the opponent an opportunity to remind.Finally,in the light of the normative mode of the exercise period of termination right in comparative law,this article holds that it is reasonable to limit the exercising period of termination right to the limitation of contract elimination,and if the right of claim is extinguished and the debtor defend on thelimitation of contract elimination,the termination will be invalid.