The Right Of Arbitrary Rescission In The Mandate Contract

The broad meaning of article 410 of the contract law has caused many disputes in the interpretation and application of the provision in both the theoretical and practical fields.Judging from the first sentence of the article,it does not distinguish whether the mandate contract is paid or unpaid,and gives the principal and the agent exactly the same right of arbitrage,and there is no restriction on the exercise.In practice,there are many disputes caused by the parties exercising the right of arbitrary rescission.The second sentence of the article can be understood as meaning that as long as damages are caused by the exercise the right of arbitrary rescission to the other party,it shall be included in the scope of damages unless it is not attributable to any right of rescission,but the scope of compensation for losses is unclear.Therefore,it is necessary to study the right of arbitrary rescission in the mandate contract.This article is divided into three parts:The first part,citing the cases in the gazette of the Supreme Court,discussing the definition of the basic concept of the mandate contract and basic theory of the right of arbitrary rescission in the mandate contract,then puts forward two problems in article410 of the contract law in judicial practice.The question one is arbitrary cancellation of the mandate contract will not only cause serious consequences,but also exist abusing of rights in reality,whether the exercise of the right should be limited.Thequestion two is the scope of compensation for losses after exercising the right of arbitrary rescission.The second part discusses whether the exercise of the right of arbitrary rescission in the mandate contract should be restricted.The author believes that it should be distinguished from unpaid,paid mandate and combined with the subject for analysis.In the unpaid mandate contract,the feature of unpaid is one of the reasons for the law grant the right of arbitrary rescission.Both the principal and the agent have the discretionary right of termination,and should not be restricted.The main legal basis for principal,in addition to the feature of unpaid,also has consideration of taking care of his own interest.In the paid mandate contract,for the legal considerations of their own interests,trust basis,and the value of freedom and efficiency,the principal's right of arbitrary rescission should not be restricted.While the agent's basis of trust and interest considerations are different from the principal.In order to prevent the abuse of rights,the right of arbitrary rescission should be restricted.For restricting the exercise of be restricted of the mandate contract,the parties abandon the right of arbitrary rescission in the mandate contract in advance which is valid,and the right of arbitrary rescission is not a mandatory norm.The parties may give up the right through the autonomy of will.The third part discusses the scope of compensation for losses after the mandate contract ‘s parties exercising the right of arbitrary rescission.The author's opinion is that we should distinguish the subject who exercise the right and combined with the nature of the contract to do a specific analysis.In the case of the principal dissolve the mandate contract without any reason,if the agent has interests in the mandate contract at the same time,whether the contract is paid or not,the loss of such benefits shall be included in the loss range specified in Article 410 of the Contract Law.When the principal dissolve the unpaid mandate contract,the contract does not have interests of the agent under normal circumstances,there is no loss of interest for the agent,so no compensation is required.When the principal dissolve the paid mandate contract,the scope of compensation for losses is the available benefit of the agent.In the case of the agent dissolve the mandate contract without any reason,when the mandatecontract is unpaid contract,the agent is equivalent to the labor contributor.The relevant jurisprudence of the gift contract can be analogized.In principle,the scope of compensation for losses is limited reliance interests.When the mandate contract is paid contract,it shall be responsible for the performance of the benefits.