Research On The Right Of Termination Of Installment Sales Contract

At present,the installment sale system in China is regulated only by Article 167 of the Contract Law and Articles 38 and 39 of the Judicial Interpretation of the Sale and Purchase Contract.Owing to its simple provisions and legal loopholes,there are many obstacles to its application in judicial practice.This article takes the right to cancel the installment sale as the research object,combines the provisions of Article 634 of the Civil Code(Draft),and studies the legislative legislation and theoretical results of the installment sale system in various countries and regions,as well as relevant judicial decisions.The application scope,exercise conditions,and legal consequences of the right to cancel the sale are studied.The legislative norms of installment sales are based on balancing the interests of buyers and sellers.In order to avoid abuse of rights by sellers,semi-mandatory normative attributes strictly stipulate the conditions under which sellers can exercise their rights of release to protect the interests of buyers.However,due to a legal loophole in Article 167 of the Contract Law,the legislative purpose of protecting the interests of the buyer cannot be achieved at a practical level.Article 634 of the Civil Code(Draft)adds a reminder procedure on the basis of this clause.The legal loopholes have been filled,and the rules for the right to cancel the installment purchase and sale have been substantially improved.In addition,the relationship between the right to cancel the installment sale and the statutory right to cancel shall be a special law and a general law.When the buyer delays the payment of the price to meet the conditions for the termination of the contract,the right to cancel the installment sale shall be given priority.In terms of scope of application,installment purchases are generally applicable to physical objects,but they do not distinguish between purchases and purchases by consumers.Guiding Case No.67 attempts to establish a rule that the limited liability equity transfer contract excludes the application of the right to cancel the installment sale.However,in actual trials,it has not played a good role in guiding the trial of the case,but has increased the pressure on the uniform application of the law.On the basis of clarifying the origin of the equity transfer contract with reference to the application of Article 167 of the Contract Law to remove the predicament,and in accordance with the amendment and adjustment of Article 634 of the Civil Code(Draft),the equity transfer contract can meet the basic characteristics of the installment sale By analogy,the right to cancel the installment sale is applicable.Regarding the exercise of the right to release,the generation of the right to cancel the installment sale must meet three conditions.First,it must meet the two basic characteristics of "payment of the subject matter in advance" and "payment of installments in installments".Second,the buyer delayed payment of the due price and the amount of the payment reached one fifth of the total price.The third is that the seller must fulfill the obligation to reminder and give the buyer a reasonable grace period for performance.In terms of legal consequences,the installment sales contract is regarded as a non-continuing contract,which is generally retroactive after its cancellation,so that the contractual relationship is eliminated retroactively.According to the general legal consequences of the termination of the contract and the provisions of Article 634,paragraph 2 of the Civil Code(Draft)and related judicial interpretations,the seller generally has the right to request the return of the subject matter,payment of the use fee of the subject matter and compensation for damage to the subject matter.