| The No.410 article of China’s contract law stipulates the right of arbitrary rescission of the entrustment contract.The clause stipulates that the parties may terminate the entrustment contract at any time,there is no justification for its exercise,without the limitation of time,space,and right of way.Loss caused to the other party by rescission of the contract,should bear Liability for damages.But the article is too simple,content is not exhaustive.There are two problems.First,how to judge whether the liability for damages should be assumed,that is,what are the prerequisites for the liability for damages?Should we be liable for damages as long as we exercise the right of arbitrary rescission?Second,how to determine the scope of damages.Whether it includes the loss of profit or only the expectation of interest.What is the definition of available interest and trust interest?Our laws are not clear.Theorists and practitioners have disputes on this issue.This paper is mainly based on the analysis of disputes existing in theory and practice.Drawing on the regulations of foreign countries on arbitrary removal of damage compensation in entrustment contracts.Put forward views on arbitrary termination of damages in the entrustment contract.That is to say,the compensation for direct loss is supported in gratuitous entrustment,and the compensation for direct loss and gain is supported in compensatory entrustment.Finally,it puts forward some suggestions to improve the legislation.This paper is divided into five parts besides the introduction.The first part is an overview of arbitrary termination of damages in the entrustment contract.Including the connotation of arbitrary termination of damages in the entrusting contract.The particularity of arbitrary rescission of damages and the relationship between the exercise and exclusion of the right of arbitrary rescission of the entrusted contract and damages.The second part is the inspection of the relevant systems of the main continental law countries.Analyses lessons from the stipulations of Japan and Germany on arbitrary termination of damages in entrustment contracts.On this basis,it provides ideas for improving china’s arbitrary rescission of damages by contract of entrustment.The third part is the disputes on the scope of arbitrary rescission of damages in the entrustment contract.Including disputes in theory and judicial practice.Theoretic controversy mainly centers on reliance interest,available benefit and expectant benefit.The disputes in judicial practice are mainly two different opinions in judicial adjudication.Finally,the disputes in theory and practice are summarized and analyzed.The fourth part is the determination of the scope of damages for arbitrary termination of the entrusted contract.On the basis of analyzing the disputes between theory and practice,puts forward the viewpoint that the scope of damages should be explored by distinguishing situations.Supporting direct loss in gratuitous entrustment.Supporting direct loss and loss of available benefit in compensated entrustment.The fifth part is to put forward legislative proposals on this issue.On the basis of the provisions of section(draft)of civil code contract series 716.On this basis,puts forward legislative suggestions on arbitrary termination of the system of compensation for damages in the entrustment contract. |
