Complementing The Termination System Of Regular Continuing Contracts

Continuous contracts and discrete contracts are one of the basic classifications of contracts.This classification has received more and more attention in the field of contract law because of the special nature of continuous contracts in the application of rules,especially the statutory contract termination rules.In the Civil Code of the People's Republic of China(Draft),China has created the termination rules for permanent continuous contracts in the statutory contract termination system.However,there are still gaps in the existing statutory termination system in China,which are not enough to cover some special issues.As a result,many term continuous contracts in our country have the problem of inability to terminate so that there are some contract deadlocks in China's judicial practice.In order to break the deadlock,some scholars in the academic community limited their perspective to "termination proposed by the breaching party",and proposed the concept of establishing the breaching party's right of termination,but this lacked a legislative basis and is not able to break all deadlocks,so it is not the best solution.This article broadens the horizon to the supply of the right to terminate the continuous contract and proposes that in the current legal context of our country,it is necessary to establish a system of the termination of continuous contracts based on compelling reason.The article analyzes the cases in China's judicial practice and the application of China's existing statutory termination reasons in the typical cases of comparative law.It positively reflects the problem of contract deadlocks in China's continuous contracts,and the limitation of the legal termination of China's contracts.Then,the article tries to find out reasons for inadequate legal right of termination of continuing contracts in China.In fact,the reason was that our country paid insufficient attention to the particularity of continuous contracts,which led to omissions in the legislation of the contract termination system.The article further analyzes the peculiarities of the continuous contract itself and derives that the establishment of the right to terminate the continuous contract should pay attention to the fact affecting the basis of trust between the parties to the contract.Through the study of comparative law,it can be observed that the continuous contracts termination system established by Germany based on compelling reasons and the Japan's theory of trust relationship have paid much attention to the special nature of continuous contracts and established or developed a suitable continuous contract termination system.By drawing lessons from the comparative law,and comparing the development paths and commonalities between China and other countries on the continuous contract termination system,we can find that China also has the foundation for establishing a continuous contract termination system which is using the honest credit principle.Therefore,in the legal context of our country,the article draws on Germany's special system of the continuous contract termination and advocates the establishment of continuous contracts termination system based on compelling reasons.It clarifies the relationship between the continuous contracts termination system and the existing statutory termination system.The application of the new rules-“the termination of continuous contracts based on compelling reason” in judicial practice combining with the principle of change of circumstances can resolve the case of “termination proposed by the breaching party”.The honest credit principle can be cited at the moment when the rules of termination of the continuous contract are lacking.Finally,the problem of insufficient supply of contract termination rules in China's legal system is resolved.