On Exercise Of Contract Rescission Right

The system of rescission of contract is an important system in the field of contract law,which can help the parties escape from the contract constraint legally.This paper focuses on the exercise of the right to terminate the contract in China,including the subject,conditions and procedures of this right.The first part introduces the purpose and significance of this study,the current situation of the research on the exercise of the right to rescind the contract in China and abroad,the research methods and innovations of this paper.The second part is mainly about the definition of the right to terminate the contract,the theoretical basis and the value of the right to terminate the contract.There are differences between contract rescission and contract breach,contract termination,contract invalidity and contract cancellation.The rescission of the contract can be divided into legal rescission and agreed rescission.China's contract law stipulates the conditions for the exercise of the legal right of rescission.The characteristics of the right to rescind a contract are procedural,timeliness and immediacy.The theoretical basis of the right to rescind a contract is the principle of autonomy of will and the principle of good faith.The value of the right to rescind a contract is to promote trade and stabilize the order of trade on the premise of freedom of contract.The third part is the current situation and deficiency of the exercise system of the right to rescind the contract.First of all,from three aspects of the exercise subject,the exercise conditions and the exercise procedures of the right to rescind the contract,it shows the current situation of the legal provisions and the legal application of the exercise system of the right to rescind the contract in China.Secondly,through the current situation of the legal provisions and the application of the law,this paper sums up the limitations of the exercise system of the right to rescind the contract in our country,mainly including whether the subject of the right to rescind the contract is limited to the observant party,whether the breaching party or the court can become the subject of the right to rescind the contract;in terms of the exercise conditions,the existing contract laws and regulations have some uncertainty;in terms of the procedures for the exercise of the right to rescind the contract,the person who has the right to rescind the contract does not notify the other party and directly files a lawsuit or applies for arbitration;whether the court orthe arbitration institution can accept the case or not,and what judgment will be made after the acceptance is not clear.The fourth part is the relevant provisions and comments on the exercise of the right to rescind the contract in the draft of Chinese civil code.This part is mainly about the provisions of the draft contract of the civil code on the subject,conditions and path of the exercise of the right to rescind the contract,and comments on the relevant provisions of the draft contract of the civil code.This part,combined with the draft of Chinese civil code(second review draft),compares and explores the reasonable scope of the subject of the right to rescind the contract.The fifth part is about the provisions of the contract rescission system of Japanese civil code,German civil code,and French civil code.In terms of the conditions for the exercise of the right to rescind the contract,the civil codes of Germany and Japan adopt the legislative mode of type of conditions for the exercise of the right to rescind the contract.The civil codes of Japan refine the conditions for the exercise of the right to rescind various types of contracts to a certain extent,and make a distinction between them,so that in the relatively specific types of contracts,when the parties to the contract exercise the right to rescind the contract,the exercise conditions are more definite.France adopted the mode of rescission of litigation,while Germany and Japan mainly adopted the mode of rescission by notice.The sixth part puts forward the perfection of the contract rescission system in the process of compiling the civil code of our country.The first point is to give the breaching party the right to request the rescission of the contract under the specific conditions,the second point is to refine the conditions for the exercise of the right to rescind the contract,the third point is to determine the way to notify the other party,and the forth point is to adopt the behavior rescission mode as well as the similar referee release mode.