Research On The Right Of Arbitrary Rescission On Commission Contracts

Commission is a kind of service contract,because its expression of “handling affairs” is very general and has the nature of openness,it is widely used in economic society.Rules governing nominate contracts stipulates the right of arbitrary rescission of commission contract,but the article only focus on principles,which is lack of operability.And it leads to frequent disputes in judicial practice,theoretical circle also raise a lot of discussion about right of arbitrary rescission on commission contracts.In order to solve disputes over the right of arbitrary rescission on commission contracts reasonably,the legislature revised article 410 of contract law.The article 716 of Civil Law Code(draft)states: "the principal or the agent can terminate the commission contract at any time.When the rescission of the contract causes losses to the other party,except for causes not attributable to the party,gratuitous commission only compensates for the losses caused by the improper rescission period,non-gratuitous commission compensates for acquirable interest and direct loss." From the first sentence of the revised article,it is unnecessary to distinguish between the commission contract with non-gratuitous and gratuitous in exercising the right of arbitrary rescission,and there is no restriction on such exercise;According to the second sentence of this article,the scope of compensation for the losses caused by the exercise of the right of arbitrary rescission to the other party is different due to the different types of commission contracts.The revised article cannot handle all problems in judicial practice,and the scope of compensation after exercising the right of arbitrary rescission is also controversial.Therefore,research of the right of arbitrary rescission of commission contract is necessary.This article is composed of four parts,below are the detailed contents:The first part mainly introduces the cases related to the commission contract,and raise three problems might happen in judicial practice upon these cases: The first is the problem whether the right of arbitrary rescission on commission contracts should be limited,and the second is the problem of the force of the agreement of the parties to the commission contract to exclude the right of arbitrary rescission.The third is the scope of compensation after the parties to the non-gratuitous commission contract exercise the right of arbitrary rescission.The second part mainly discusses whether the right of arbitrary rescission of commission contract should be restricted.The author thinks the contract type should be distinguished during the discussion.In gratuitous commission,free of charge and special trust relationship endow the parties of commission contract with the right of arbitrary rescission,so it should not be restricted.For gratuitous commission contracts containing the interests of the agent,considering the pattern of interests — namely the principal's interests are still in a dominant position even if the interests of the agent exist,so the principal's right of arbitrary rescission should not be restricted;The interests of the agent can be waived,so the agent's right of arbitrary rescission should not be restricted too.In the case of non-fortuitousness commission,the parties to the contract share the right of arbitrary rescission at the sake of their freedom to decide for themselves and the consideration of harmonizing the legislation system of the contract law.The third part discusses the force of obviating the right of arbitrary rescission on commission contracts by assumpsit.By combing the existing theories,it is not difficult to find that the focus of the dispute lies in the nature of the right of arbitrary rescission.Based on the substance of arbitrary standards to identify the methodology and function,the author concludes that the right of arbitrary rescission belongs to the arbitrary standards and is a complementary and arbitrary standard.At the same time,the provisions of the contract law are mostly arbitrary standards,according to the rule: "If there is any doubt about the legal norms,it should be arbitrary",the right of arbitrary rescission in commission contracts can be obviated by assumpsit.The fourth part mainly discusses the compensation after the parties of the nongratuitous commission contract exercise the right of arbitrary rescission.The author believes that the compensation after the arbitrary rescission of the non-gratuitous commission contract should be included in the available interests.First,the exercise of the right of arbitrary rescission has the characteristic of fundamental breach of the contract for the opposite party.Secondly,the available interests as the Separation cost,which is helpful to limit the abuse of the right of arbitrary rescission.For the consideration of interest balance and market resource allocation,available interests can make the contract parties avoid getting into rigidity.In order to increase the operability of the compensation of available interests,the standard of proving the available interests should be lowered in judicial practice.The parties only need to prove the existence of the available interests loss rather than the specific amount of the available interests,this should be discretionary.Meanwhile,the guiding opinions issued by SPC should be referred to make an appropriate proof cite responsibility Inversion.