Study On The Scope Of Damage Compensation For Arbitrary Termination Of Commission Contract

According to Article 933 of the Civil Code of the People's Republic of China,the scope of damage compensation for the arbitrary termination of the entrusted contract is divided into direct loss,direct loss and available interest based on the onerous contract and gratuitous contract.As for whether this distinction is appropriate,we should analyze the nature of the right on the arbitrary termination of the contract.In addition,for the interpretation of this provision,we should make a targeted response to the identification and restriction of "direct loss" and "available interest" in judicial practice,classifying the entrusted contract and discussing the specific scope of compensation:First,Legal Analysis of the Right of Arbitrary Termination of Entrusted Contract.Based on the trust relationship of the entrusted contract,the continuing contract of the mandate and the nature of safeguarding the interests of others,the right of arbitrary termination of the entrusted contract is justified in light with the pursuit of efficiency value in modern society.However,its arbitrary termination of the contract and failure to perform the agreed contractual obligations are manifestations of breach of contract.Although it cannot be concluded that the exercise of the right of arbitrary termination is absolutely restricted according to legal interpretation,based on the consideration of the legal policy,the gratuitous mandate only is compensated for direct losses,and the consequences of arbitrary termination of onerous contract are no different from breach of contract.Second,Determination of "Direct Loss" in the Entrusted Contract.The court's use of direct loss is actually still a replacement for the term "actual loss" rather than a judgment of the "direct" relationship or a new type of loss.In the case of compensation for breach of contract,the damage system consisting of actual losses and available benefits is used.The interpretation of "direct loss" as "actual loss" conforms to the purpose of legislation,which is theoretically acceptable,feasible for practical operation and compulsory for the system of legal interpretation.Thirdly,Determination of "Available Benefits" in Entrusted Contract.There are no available benefits in civil entrustment,but in the commercial entrusted contracts,the main forms of available benefits are loss of production profit,loss of operationprofit and loss of compensation commission profit,among which the general remuneration is not included.For the foreseeability of the breaching party,only the type of damage should be foreseen but not the extent of the damage.At the same time,the reasonable certainty standard of American law is used for reference to reduce the burden of proof of the plaintiff.Fourthly,Scope of Compensation for the Typed Entrusted Contract.Based on the measurement of different interests,the entrusted contract is divided into civil and commercial entrustments,and the civil entrustments are divided into onerous and gratuitous entrustment.In the case of civil gratuitous entrustment,the client may terminate the contract arbitrarily,usually without compensation,but it should be noted that the trustee has interests in the contract;in the case of the trustee terminating the contract arbitrarily,the scope of compensation is the trust interests and inherent interests.The scope of compensation is direct loss if the client cancels the contract arbitrarily for civil onerous entrustment;the scope of compensation is additional cost or damage to entrusted affairs caused by the client,including compensation for inherent interests.In case of damage caused by the termination of commercial entrustment,the direct loss and available interests shall be compensated generally.However,it should be noted that the interests of the parties in the commercial entrustment depend on the premise of the establishment or performance of other legal acts and the situation of commercial entrustment that appears to be free but in essence has compensation.