Study On The Right Of Termination In Installment Transaction

Installment transaction is a typical credit transaction,which refers to a special transaction in which both parties agree in the contract that the seller shall deliver the subject matter first and the buyer shall pay the total contract price in installments.The Article 167 of the Contract Law is the only article directly regulating the installment transaction in the current legislation of our country,but there is little research on the termination of the installment transaction stipulated in this article in the theoretical circle of our country.The No.67 Guiding Case issued by the Supreme People's Court concerns whether the Article 167 of the Contract Law could be applied to the equity transfer contract;it attempts to establish a rule of adjudication that the transferor cannot apply the provision of Article 167 of the Contract Law to terminate equity transfer contracts.Once the No.67 Guiding Case was published,there are different opinions in the academic circles.Many scholars questioned the omissions in the judgment reasons.For example,the reason of adjudication is not consistent with current legislation and judicial practice,the "application" and "reference" are confused,and the main points of adjudication deviate from the facts of the original case.This thesis attempts to start from the judgment reason of No.67 Guiding Case,then analyze the foreign legislation,the current legislation of our country and the mainstream theory dispute of the right of termination of installment transaction,and discuss the understanding and application scope of the right of termination of installment transaction in the Article 167 of the Contract Law.The main body of thisthesis consists of the following three chapters:The first chapter mainly analyzes the basic cognition of installment transaction and the position of legal norm regarding the right of termination of installment transaction."Delivery first" and "payment in installments" are the essential characteristics of installment transaction.There are two theories about the position of legal norm regarding the right of termination of installment transaction in the academic circle of our country,which are "the theory of empowering clause that endows the seller with special termination right" and "the theory of restrictive clause that protects buyers".Most of the traditional civil law countries have established regulations for installment transaction in order to protect buyers.Based on the consideration of the basic characteristics of installment transaction and the narrowing of the "structural gap" between the buyer and the seller,the Article 167 of the Contract Law should be the empowering clause that endows the seller with the right of special termination.At the same time,in the actual normative effect,the right of termination of installment transaction also puts the seller in a better position.The second chapter mainly discusses the scope of application of the right to terminate installment transaction.The legislation of our country does not explicitly limit the scope of application of the right to terminate installment transaction.There are two main views in the academic circles of our country,namely,"the application of the first paragraph of Article 167 of the Contract Law is limited to the field of consumption contract" and "the first paragraph of Article 167 of the Contract Law can be applied to various types of installment transaction contracts".At the level of comparative law,most traditional civil law countries limit the scope of application of the right to terminate installment transaction to the field of consumer contracts.This thesis holds that if we limit the scope of application of the right of termination of installment transaction based on the purpose of protecting consumers,it will put consumers in a more unfavorable position.The Contract Law of our country adopts the mode of combination of civil and commercial codes.Although there are differences between commercial transactions and consumer contracts,they are all paid transactions in essence.In addition to the special provisions in the Company Law or the Consumer Law,the general rules of sales contracts in the Contract Law should be applied.The right to terminate installment transaction may also be applied to equity.The particularity of the subject matter of equity,considerations for maintaining transaction safety and the human integration of limited liability companies will notprevent the provisions of this paragraph from being applied by reference.The third chapter aims to study the applicable relationship between the right of termination of installment transaction and relevant systems.Article 94 of the Contract Law is for all contracts,while the Article 167 is only for installment transaction,which is a special legal right to terminate;at the same time,based on the consideration of protecting the buyer's interests,it should be used jointly with the item3 of the Article 94 of the Contract Law to add the procedure of reminders.There is no inevitable relationship between the right of termination and the right of retention of ownership in installment transaction.The retaking right of the right of retention of ownership should be based on the theory of claim for compensation,which can be exercised in parallel with the right of termination in installment transaction.In addition,there is no sequential relationship between the right of rescission and the right of termination,which can be chosen by the seller.