Restitution Study After The Dissolution Of The Contract

Article 97 of the "Contract Law" stipulates the legal effect after the dissolution of the contract.However,it is this principled provision that makes the complex issue of restitution after the dissolution of the contract seem at a loss in terms of the application of law.As a special return system,the right of claim based on the current designing framework is not clear,which also causes the judge directly quotes article97 of the "Contract Law" to make a judgment.Based on the selection of typical significance in the judicial practice of buying and selling contract dispute,the analysis of the problems exposed by reviewing and understanding causes of its derivation aims at the problems of restorable to find out: firstly,the relationship of the obligation of restitution and the unjust enrichment system,the right of claiming for return of property;Secondly,in the case of polysemy of the same word,the normative meaning of restitution itself in the context of contract dissolution;Thirdly,how to take into account the interest protection of bona fide third party when the contract is dissolved,and whether the guarantor of the original contract should continue to bear the liability for the respondent's restitution obligation;Fourthly,the specific treatment of the price compensation when the original condition cannot be restored,and the boundary between the price compensation and the damage compensation.In view of the nature of restitution,this paper,starting from the function of therescission system itself,compares the consequences of rescission with the consequences of breach of contracts and conditional rescission,and supports the theory of protecting the implication of bilateral contracts.There are two camps: the direct effect theory and the compromise theory.This paper goes back to the source and finds that although Japan's "direct effect theory" is inherited from Germany,based on the fact that the legislation does not recognize the independence of real right behavior.Japan's "direct effect theory" is actually derived from the French-style "implied relief condition" theory through the introduction of German and Japanese precedents.Germany's "compromise theory" is entirely to make up for the previous "direct effect" under the "cancellation and elimination of the right to claim for damages" defects.Therefore,the dispute in Chinese academic circles on this issue is actually a dialogue between the "direct effect theory" of the "condition of implied relief" theory and the "compromise theory" of Germany.The issue of whether to recognize the retroactivity of rescission is the focus of dispute between the two parties.This paper combines with the conclusion that the consequence of rescission can protect the implication of bilateral contract and denies this issue.In addition,from the contract concluded by the process of its existence,since the contract is invalid or revoked the reason has a retrospective affect,the intention is produced in the process of defect formation,while the dissolution of the contract,usually in a flawless legal behavior,happened in the process of the performance of obstacle.As a result,we don't need to by certain retrospective to negate the validity of the original contract.Therefore,the dissolution from the perspective of "compromise theory" is not to eliminate the validity of the contract immediately,but to liquidate the property based on the existence of the original contract and terminate the contract after the liquidation.Following this path,the author denies the view that "direct effect theory" regards restitution as unjust enrichment.As for the specific normative meaning of restoring the original status,due to the polysemy of the same word in the articles of the civil law in China,the author sorted out the concept of restoring the original status in the context of contract dissolutionand the restoration of the original status in the context of damage compensation,and thus drew three types of conclusions of restoring the original status in the civil law: 1.restitution for damages;2.restitution of benefits;3.restitution of real right.On the basis of the right of claim for restitution,the author makes it clear that the essence of the restitution of article 97 of the contract law is return and liquidation by combining with overseas legislative cases.It has commonality with the restitution after the invalidation and revocation of the contract.And with reference to the viewpoints of scholars,the conclusion is drawn that the restitution of article 97 of the contract law and other remedial measures should be purposefully limited and reduced.In dealing with the third party's restoration,this paper reviews three situations:the transferee transfers the subject matter to the third party,and the third party provides guarantee.In the first two cases,based on the position of maintaining the transaction order and the contract defense between the triangle relationship,the parties who restore the original relationship are still the parties of the original contract,and neither party is excused from the third party.It is impossible to claim the return of the tangible object to the third party.The creditor can only request the counterpart to perform the obligation of restoring the original state by means of price compensation.As for the effect on the guarantee contract,the main dispute is whether the obligation of restitution is identical with the obligation of the original contract.In this paper,the author tends to affirm and interpret the expansion of "civil liability" in article 10 of the judicial interpretation of security law as "mode of bearing civil liability",thus drawing the conclusion that the guarantor still bears the guaranty liability for the restitution obligation borne by the principal after the dissolution of the contract.In terms of the treatment of unrestored status,this paper mainly makes a typological analysis on the first sentence of the second paragraph of article 346 of the German civil code,and reviews the specific situation in the case of unrestored status in combination with the opening case of this paper,thus detailing the restoration of article 97 of the contract law.On the calculation standard of value repayment,combining with the position of dissolving and maintaining the implication of thedouble-service contract,and to implement the principle of the parties' autonomy of will,the conclusion that the treatment of payment as agreed in the original contract should be taken as the calculation standard is given.In terms of excluding the problem of value repayment,this paper analyzes and reviews the opening case based on the principle of "the legal relief right holder has preferential treatment" in the extraterritorial legislation cases,and demonstrates the boundary between value repayment and damage compensation based on the imputation causes.