Study On The Liability Of Damages For Arbitrary Termination Of Commission Contract

As a kind of transaction contract,commission contract is widely existed in modern society.In the current practice,the scope of compensation for arbitrary termination is controversial.On the basis of the legitimacy of the system of arbitrary discharge and the breach of obligations of the discharge party,this paper demonstrates the meaning of the attributable cause and the scope of compensation for damages.At the same time,it summarizes the actual cases,summarizes the problems and experience in judicial practice,and puts forward relevant suggestions for judicial practice.The foreword mainly explains the core issues,legislative status,literature review,research methods,full-text framework,and major innovations and deficiencies.The first part is a comprehensive explanation of the legal consequences of the right of arbitrary rescission,which clarifies the main contents of this paper.The second part is to analyze the legitimate basis of the system,including the defects of the relevant theories such as "free theory","continuous contract theory" and "efficiency theory",the reasons to refute the doubters,to reexamine the value of the principle of trust relationship,and to work on the principle of trust relationship To demonstrate the legitimacy basis.In addition,in combination with the article 930 of the <Civil Code(Draft)>(December 28,2019),special consideration is given to paid trust contract,and argumentation of gratuitous nature also constitutes one of thelegitimacy bases of the legislative power to terminate arbitrarily.The third part is to explore the system positioning of the liability for damages under the circumstances of arbitrary release,which provides the basis for the definition of the scope of damages.From three aspects,this paper demonstrates the reasons why the rescinds should bear the liability for damages even though it exercises the right of rescission given by law,and analyzes that under the circumstances of liability fixation,the party can arbitrarily rescind the breached contractual obligations and solve the logic dilemma of non performance of liabilities.In addition,it analyzes the reasons for the exemption of the liability for damages,and clarifies the meaning of "non imputable liability" in article 410 of the contract law.The fourth part is to distinguish the operational types of the commission contract,in order to determine the scope of the liability for compensation of the parties who terminate the contract arbitrarily,including summarizing the domestic theories,analyzing the foreign legislation and related theories,comparing the domestic and foreign legislative differences,and grasping the changes of the <Civil Code(Draft)>.On this basis,the commission contract is divided into free commission and paid commission,and paid commission is divided into irregular continuous paid commission and irregular continuous paid commission according to the duration.For gratuitous commission,one party shall only bear the direct loss caused by improper termination time.For paid commission,if the party cancels the indefinite continuing commission,it shall bear the direct loss and available interest loss caused by the improper termination time;if the party cancels the indefinite continuing commission,it shall bear the direct loss and available interest loss of the other party.The fifth part is to extract the operable damage calculation method from the practice,trying to solve the problem that there are too many differences in the determination of the amount of compensation for the same type of cases,different regions and different levels of courts.By collecting practical cases,this paper analyzes the court's attitude towards compensation for direct losses and available interests.After sorting out and summarizing,the main problems in the judgment focus on whether the available interests should be compensated and the specific calculation.As for the issue of no compensation,this paper has been demonstrated in the fourth part,so this part mainly puts forward relevant suggestions on how to determine the existence and calculation of the available interest loss.After analysis and summary,this paper proposes that: in the determination of the available interests,the parties need to prove that the loss of the available interests exists and can be foreseen by the other party;in the calculation,the loss of the available interests includes the loss of profits,the loss of property appreciation and the loss of remuneration.In the calculation of profit loss,we can refer to our own previous profits or the profits of the same subject;the difference between the market price and the contract price when the property value-added loss can be sued is the standard;and the compensation loss,if there is an agreement,shall be determined according to the agreement;if there is no agreement,it can be determined through consultation,reference to trading habits,industry standards or the market value when the lawsuit is filed.