Research On Discretionary Termination Of Mixed Contracts,Starting From Commission-type Mixed Contracts

Discretionary termination is an exception to the principle of strict contract compliance.The right of arbitrary rescission belongs to forming right which arises from explicit legal provisions.The scope of application of arbitrary dissolution is strictly restricted by law.In economic life,people frequently create and use anonymous contracts and mixed contracts.Whether the mixed contract can be arbitrarily terminated can only be judged according to the Article 124 of the PRC Contract Law and rules of discretionary termination of typical contracts scattered in the contract law system.There is no uniform standard.Therefore,this paper takes typical cases of whether the commission-type mixed contracts can be arbitrarily dissolved in judicial practice as the starting point,and analyzes the uniform rules and ideas behind different decisions.Can those mixed contracts apply to the arbitrary dissolution rules of named contracts in Contract Law?If not,how are these restrictions like?What is the uniform legal basis or reason behind these restrictions?In this paper,it is believed that whether the mixed contract can be arbitrarilyterminated is limited by two aspects of regulations,rooting in “mix” and “arbitrary termination” respectively.First,the legal restriction level.Question 1: Is the contract made up entirely of typical contracts that can be terminated at will or typical contracts that cannot be terminated arbitrarily?If so,the contract shall apply to the rules of typical contracts.If not,then the mixed contract contains typical contract or anonymous contract that cannot be arbitrarily terminated.Here comes question 2.Does the parties' major delivery obligation come from the same typical contract?If so,the contract is a quasi hybrid contract or a master-to-client hybrid contract,applying the rules of the main part to affirm or deny the arbitrary discharge of the contract.If not,these major delivery obligations are from different typical contracts,enter question 3.Is there a major delivery obligation from typical contracts without discretionary termination right?If the answer is yes,the rules of the typical contract that cannot be arbitrarily terminated shall apply,and the parties shall not have the right to terminate the contract arbitrarily.If not,the parties shall have the right to terminate the contract at will.Second,the intentional restriction level.As for the clauses in the contract that the parties agree to have or give up the right to terminate the contract arbitrarily,their effect shall be determined according to the situation.If in the case the legal basis for the arbitrary termination of applicable typical contracts embodies the protection of public order and good morals,the agreement to give up the right is invalid.If the legal basis does not involve public order and good morals,but is mainly based on interests or elements within the contract between the parties,the agreement is valid.The application of the right of discretionary rescission can not be excluded through the contract period agreement or the damage liability agreement,but the liability of compensation is affected.When there is no legal right of discretionary termination,and the parties agree on their right to terminate the contract arbitrarily,the agreement is usually valid unless there is a cause for invalidity.However,the essence of the terms is a reservation for rescission through consultation.In summary,the existence of the right of arbitrary termination of mixed contract can be understood from both sides.The reason for affirming arbitrary termination liesin the compliance with the provisions of the existing law of arbitrary termination and the legal basis behind it.The reason why mixed contracts cannot be arbitrarily terminated is the addition of other interests or elements or violating legal basis directly reflected in the provisions.When the legal basis of discretionary termination involves public order and good morals,the exclusion of the right is invalid.The mixed contract can be arbitrarily dissolved according to the typical contract's rule to which it applies,if the legal basis involves the difference of civil contracts and commercial contracts,or violates the hidden legal basis,which only affects the scope of damages.