Non-arbitrary Termination Study Based On Continuing Contract

A continuing contract is a contract in which the total amount of payment increases with the extension of time and the payment obligation is performed in succession with the passage of time.At present,its theoretical research focuses on the level of contract termination.According to whether certain conditions are required for the termination,it can be divided into arbitrary termination and non-arbitrary termination.Non-arbitrary termination refers to conditional termination of a continuing contract,that is,after the fulfillment of the conditions prescribed by law or the conditions agreed upon by the parties in advance,the parties can exercise the right of termination without prior notice.In order to distinguish between the non-arbitrary right of termination and the arbitrary right of termination of continuing contract,it is necessary to sort out its legal provisions and legal effects in our civil law.Through the research,it can be found that in China,the non-arbitrary right to terminate continuing contracts has not been paid attention to by the legislators,and the time factor involved has not been clearly defined.The civil code of the People's Republic of China(draft)is still dominated by the type of legal termination in a real-time contract(only article 563(2)of the draft stipulates the continuing contract).Therefore,it is necessary to study the causes,exercise and elimination of non-arbitrary termination right,and then design a relatively reasonable termination system.As the non-arbitrary right to terminate the continuing contract is still in its infancy and the relevant institutional norms are not perfect,it is necessary to conduct a comprehensive study on the non-arbitrary right to terminate the continuing contract.Specific from the following aspects: first,the theoretical definition of non-arbitrary termination right of continuing contract.This paper expounds the connotation,legislative mode and legal effect of the non-arbitrary termination right of continuing contract,so as to better distinguish the non-arbitrary termination right and the arbitrary termination right of continuing contract by sorting out the legal provisions and legal effects in our civil law.Secondly,through the cases in the judgment practice,the problem of the non-arbitrary right to terminate the continuing contract is clarified.Through the typification analysis of 318 cases of non-arbitrary termination right of continuing contract in judicial practice,and from the qualitative point of view,this paper summarizes 34 focus points of judgment,such as violation of collateral obligationand violation of administrative regulations,and further classifies these 34 focus points into the types of disputes existing in entities and procedures.Through the comparison of theoretical theories and practical practices,it is concluded that there are some problems in the non-arbitrary termination right of continuing contract,such as "in practice,there is confusion about whether government action can be regarded as the cause of contract termination" and "the court is not clear about what can cause the loss of trust basis".At last,the author perfected the problems in judicial practice.Concrete from the non-arbitrary termination right two angles of reason and exercise program,combining academics on continuing contract the related theory of non-arbitrary termination right application effect in the judicial practice,as well as the "contract law" article 94,article95 and the law of the People's Republic of China civil code(draft)the provisions of article 563,combining practical situation in our country,and this paper proposes ways to improve the relevant provisions on the non-arbitrary termination right of continuing contracts,such as "defining the government action as a change of circumstances" and "defining the loss of trust basis as a major cause in German law",so as to better provide sound and operable theoretical guidance for legislative practice.