Interpretation And Application Of Article 167 Of The Contract Law

Article 167 of Chinese Contract Law is the only provision that directly regulates the Sale by Installment Payment,and its legislative purpose is to protect the interests of buyers.However,Article 167 to Chinese Contract Law,which give the seller the right to terminate the contract or request to pay the full price if the buyer delays its performance(hereafter referred to as Article 167),seems to contradicts the legislative purpose of protecting the buyer.Meanwhile,except failure to achieve the legislative purpose of protecting the buyer,article 167 also probably make damages to the interests of the buyer.Therefore,this paper analyzed how to make Article 167 of the Contract Law in conformity with its legislative purpose with respect to interpretation theory,and discussed the scope of application of Article 167 and how to improve the stipulation of installment payment in China through comparative perspective.This paper consists of four chapters.The first chapter introduces the difficulty in the interpretation of Article 167,such as the contradiction between its literal interpretation and its legislative purpose.Meanwhile,this chapter analyze the related adjustments made by the Supreme People's Court in Judicial Interpretation of Sale Contracts and the Guidance Case No.67 to rise the core issue of the article 167,which include the nature of Article 167,paragraph 1,it is a mandatory rule or a arbitrariness rule,what is the relationship between the special right of rescission under Article 167 paragraph 1 and the general right of rescission under Article 94,whether the scope of Article 167 should be limited to installment sales contracts for consumer.The second chapter is to analyze the normative nature of Article 167 paragraph 1through the identification of arbitrariness rules.Formally,Article 167 paragraph 1should be considered to have the appearance of an arbitrary rule,and in essence,considering the legislative purpose of Article 167 paragraph 1 and the conflict of interest it adjusted,Article 167 paragraph 1 should be considered as a semi-mandatory rule.The third chapter is to compare the right of rescission between Article 167 and Article 94 of the Contract Law,and discusses that the Supreme People's Court ‘s interpretation that Article 167 gives the seller the right to terminate the contract or to pay the full price.It also considered that it has the meaning of constraining the seller to agree on the loss of period benefits and the termination of the contract,which is not desirable.Subsequently,with respect to present law,this chapter introduces two explanations:(1)Strictly following Article 167,and guaranteeing that requirements of enforcement thereof shall not be looser than Article 94;2)Article 167 shall be a semi-mandatory rule and the function of which shall restrain to the limit of right of rescission.After reference to the model of the purchase and sale stipulated in the comparative law,author held that it is more reasonable to enforce the constituent elements of Article 167 paragraph 1 strictly and fill the legal loopholes,supplement the constituent elements of Article 167 paragraph1 through general analogy.The fourth chapter is to analyze where the German installment purchase and sale system is from.It is believed that in the international legislation,the installment purchase and sale system is generally regarded as part of consumer credit code/consumer credit protection act,and protecting the interests of consumers is necessary.Whereas foregoing argument,author holds through reverse argument that the related laws do not need to grant special protection to buyers who are not consumer.Therefore,author holds that Article 167 only applies to the consumer's installment sales contract.Meanwhile,the latter portion of this chapter also discusses the issue of the application of Article 167 to other circumstance except article 167,and hold that application should not violate the principle of the protecting weak in Article 167.In the financing installment payment transaction,the operator and the financier are integrated,so the transaction type should be directly adjusted by Article 167.