| The No.67 Guiding Case issued by the Supreme People's Court believes that if the equity transferor cancels the equity transfer contract for the installment payment,the provisions of Article 167 of the Contract Law of the People's Republic of China concerning the right to cancel the installment purchase contract will not be applied.The reason is that Article 167 of the Contract Law of the People's Republic of China is mainly applied to the contract between the operator and the consumer.The seller must first ask the buyer to pay the full price if he exercises the right of rescission.The reason for the referee is inconsistent with the legislation and judicial practice of our country.The reason for the judgment also confuses the relationship between the right to cancel the installment purchase contract and the general statutory right to terminate the contract as stipulated in Article 94 of the Contract Law of the People's Republic of China as stipulated in Article 167 of the Contract Law of the People's Republic of China.With the transformation and upgrading of China's economic structure and the continuous development of the credit economy,the installment payment trading model has shown a rapid upward trend in recent years.However,while the installment payment model is developing rapidly,the refereeing rules of the No.67 Guiding Case are misleading,which deviates from the current academic theory and judicial practice of China's installment contract.Moreover,this kind of practice is not conducive to the development of China's credit economy.There are still many problems in the regulation of the right to cancel the payment of the installment contract.There are problems of the No.67 Guiding Case at four levels: the legislative purpose of the right to cancel the installment purchase contract,the scope of application,the order of the rights of Article 167 of the Contract Law of the People's Republic of China,and the applicable relationship between the right to cancel the installment contract and the general legal right of termination of the contract.This paper analyzes the above four problems from four aspects: legislative status,doctrine disputes,judicial practice,and extraterritorial law.Through legal interpretation,system interpretation,comparative interpretation,purpose interpretation and other legal interpretation methods,this paper will demonstrate the reasonable conclusions on the above four issues regarding the right to cancel the installment purchase contract.For the legislative purpose of the right to cancel the installment purchase contract,there are mainly three kinds of controversy: “protection sellers”,“protection buyers” and “interlacement between protection sellers as the actual value and protection buyers as the natural value”.In judicial practice,the courts mostly agree that Article 167 of the Contract Law of the People's Republic of China is a clause protecting the seller,thereby supporting the request of the seller.However,the No.67 Guiding Case holds the view of “protecting the buyer”.In the extraterritorial legal field,as for the legislation of the right to cancel the installment purchase contract,the legislative purpose of protecting consumers is adopted in general.The reason is mainly that the conditions for exercising the right to cancel the purchase contract in the extra-territorial law are more stringent than the general statutory right of rescission.The author believes that China is suitable to adopt the purpose of protecting sellers on the issue of the legislative purpose of Article 167 of the Contract Law of the People's Republic of China.The reason is that the subject matter of the installment purchase contract needs to be delivered first,the seller bears more “credit risk”.Judging from the constituent elements,China's provisions on the right to cancel the installment purchase contract are also more lenient than the extraterritorial legal field and the general statutory right to terminate the contract under the delay of performance in China.Through the above reasons and the analysis of the inadequacies of other controversial points,the author believes that the right to cancel the installment contract is suitable to adopt the legislative purpose of “protecting sellers”.Regarding the scope of application of the right to cancel the installment purchase contract,the main dispute point in the academic circle is whether the scope of application of the right to cancel the installment purchase contract is limited to the consumer contract.Both national legislation and judicial policy tend to believe that the provisions of Article 167 of the Contract Law of the People's Republic of China are not limited to consumer contracts.In practice,the court also did not limit the scope of application of Article 167 of the Contract Law of the People's Republic of China.In the No.67 Guiding Case,it was considered that the right to cancel the installment contract was mainly applied between the operator and the consumer.In the field of extraterritorial law,whether the position of the right to cancel the installment contract in the legal system or the expression of its legal provisions,it can be seen that the seller's right of rescission in the installment contract is mainly applied to contracts between operators and consumers in the field of extraterritorial law.Looking at the legislation,doctrine,and judicial practice on this issue in China,and comparing the differences between China and the extraterritorial law,the author believes that the scope of application of the right to cancel the purchase contract of China's installment is not suitable to be limited in consumer contracts.From the perspective of legislative purposes,Article 167 of the Contract Law of the People's Republic of China is a clause protecting the seller.Therefore,it is not appropriate to apply it only to consumer contracts,which will be more detrimental to the protection of consumer interests.In the field of extraterritorial law,there are indeed provisions applicable between sellers and consumers,but such restrictions are subject to restrictions on the exercise of conditions and are in line with their legislative purposes.Article 167 of the Contract Law of the People's Republic of China does not limit the constituent elements of the seller's exercise of the right of rescission.When judging the scope of application of the right to cancel the installment contract,it is necessary to meet the actual legislative objectives of China.Regarding the order of rights of Article 167 of the Contract Law of the People's Republic of China,according to the criteria of if the seller has the right to choose “the request payment of the full price” or “the request to terminate the contract”,we can divide this question into two views: the rights with order and the rights without order.In judicial practice,the courts held that the seller had arbitrarily right to the two rights stipulated in Article 167 of the Contract Law of the People's Republic of China,and there was no order requirement between the two rights.The No.67 Guiding Case believes that,based on the principle of good faith,the seller must firstly “request the buyer to pay the full price” before “request the cancellation of the contract”.The German civil law academic circle also believes that the operator has the right to choose between the right to terminate the contract and the right to complete the contract.The author believes that it is inconsistent with the meaning of Article 167 of the Contract Law of the People's Republic of China to believe that there is an order between the two rights.Moreover,placing "request for payment of the full price" before "requesting the cancellation of the contract" is equivalent to adding an exercise requirement to the right to cancel the installment purchase contract.This is also inconsistent with the legislative purpose of Article 167 of the Contract Law of the People's Republic of China and the practice in China.The two rights should be in a side-by-side relationship,and their constituent elements are the same,which is also consistent with German law.Therefore,the seller has the right to choose two rights stipulated in Article 167 of the Contract Law of the People's Republic of China,and there is no order requirement between the two rights.With regard to the applicable relationship between the right to cancel the installment purchase contract and the general legal right to terminate the contract,on the basis of discussing the legislative purpose,scope of application and the order of rights of Article 167 of the Contract Law of the People's Republic of China,this paper finally settles on this issue,and explores the reasons for the legislator to set the right to cancel the installment purchase contract in the part of the "Contract Law of the People's Republic of China" on the basis of the provisions of the general statutory right of revocation of the contract.Regarding this issue,there are disputes in the doctrine that Article 167 of the Contract Law of the People's Republic of China is a special provision,supplementary provisions,and specific provisions of Article 94.Regarding this issue,there are disputes in the doctrine that Article 167 of the Contract Law of the People's Republic of China is a special provision,supplementary provisions,or specific provisions of Article 94.In practice,it is generally believed that if the buyer's unpaid amount of the installment purchase contract reaches one-fifth of the total contract price,the seller can exercise the contract cancellation right without having to satisfy the conditions that “selling person's performance of the reminder and within a reasonable period of time the seller was not reimbursed” or that “the purpose of the contract cannot be fulfilled”.The German law also considers that the right of rescission of the operator in the installment transaction excludes the application of the right of rescission in the case of delay in performance.The author believes that the reason for the birth of Article 167 of the Contract Law of the People's Republic of China is the special nature of the installment payment contract.Because the subject matter of the installment purchase contract is delivered first,and the price is paid in installments,the seller bears a greater risk that the money cannot be recovered.Only Article 167 of the Contract Law of the People's Republic of China is applied separately,can it match its value position of “protecting sellers”.Moreover,the views that Article 167 of the Contract Law of the People's Republic of China is a supplement or a specific provisions to the provisions of Article 94 also have contradictions and deficiencies.Therefore,Article 167 of the Contract Law of the People's Republic of China shall be applied as a special provision of Article 94.In summary,based on the characteristics of the “subject delivery first” and “installment payment price” of the installment purchase contract,in the case that the buyer already possesses the subject matter,the seller bears the risk that the price cannot be recovered.Moreover,the exercise of the rights stipulated in Article 167 of the Contract Law of the People's Republic of China is more lenient than the general statutory right of rescission under the delay of performance of the contract.The right to cancel the installment purchase contract shall be based on the “protection of the seller” legislative purpose.The legislative purpose of Article 167 of the Contract Law of the People's Republic of China determines the scope of application of this provision.If the right to cancel the installment contract is only applicable to consumer contracts,it is more detrimental to the protection of consumers.The above guidance case considers that if the seller wants to exercise the right to cancel the installment purchase contract as stipulated in Article 167 of the Contract Law of the People's Republic of China,he needs to first request the buyer to pay the full price,which is based on the purpose of “protecting the buyer”.However,there is a big conflict with legislation,doctrine,and judicial practice,which is also unreasonable.With regard to the applicable relationship between Articles 167 and 94 of the Contract Law of the People's Republic of China,because the right to cancel the installment contract is a special provision for the seller's “credit risk”,Article 167 of the Contract Law of the People's Republic of China is suitable for independent application and should not be based on the requirements of Article 94. |
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