On The Exercise Of The Right To Arbitrarily Rescind The Entrusted Contract And Its Damage Compensation

The provision of Article 410 of the "Contract Law" on the right to arbitrarily canceling the commission contract is designed to protect the trust relationship between the parties to the contract.When the trust is shaken,the parties may be freed from the contract and conclude a new contract at any time.However,due to the fact that this system originated from the gratuitous entrustment in Roman law,it is a product of the traditional civil entrustment ideological trend.Nowadays,commercial entrustment has occupied a large part of the entrustment contract,and this exotic product has apparently been unable to adapt to the rapid development of commerce.The simple and unified application of this provision without distinguishing between civil and commercial entrustment may unilaterally protect the trust of any party who exercising the right to arbitrarily canceling the entrustment contract,and may cause the one who input a great deal of manpower and financial resources to be used to perform commissioned services,and even establish a specialized company for this purpose suffered huge losses after the contract was arbitrarily lifted.At the same time,due to the limited scope of compensation awarded by the court in practice,the dissolving party found that the compensation for abusing the discretionary right of termination after the cancellation of the contract was far less than the benefits that could be obtained from it.If things go by in the long run,it will encourage the dissolving party to abuse the discretionary right of termination to profit from it.And it is also not conducive to better stimulate market vitality.In this paper,we have found that there are some problems in our country's system by studying the exercise and compensation cases of the discretionary right of termination in judicial practice.For example,the abuse of the discretionary right of termination in commission contracts can be roughly divided into three types,the court has different judgments on the effectiveness of the parties' prior agreement in the contract to abandon the discretionary right of termination,and the court often doesn't support the compensation for the loss of available profits after the contract was arbitrarily lifted.Therefore,this article believes that firstly it is necessary to impose limits on the scope of application of the discretionary right of termination;secondly,when judging whether the cause of the release is “non-responsibility to the parties”,it should be mainly considered whether or not the termination of the contract is discharged at the time when it is unfavorable to the other party,Whether there is a direct causal relationship between the loss and the arbitrary dismissal and whether the dismissal party can prove that he is not at fault.Thirdly,when the entrustment contract involves not only the interest of one party,it should be distinguished between civil and commercial commission.The scope of compensation is determined by taking into account various factors such as the cause,time,and consequences of the release.For civil entrustment,no compensation or only direct loss is required.For commercial entrustment,only the malicious use of the right to terminate the contract requires compensation for direct losses and available benefits.When both parties abandon the discretionary right of termination in advance,the scope of compensation will be the same as the consequences of the breach.Finally,this paper proposes that the legislation should lay down the rules for distinguishing between civil and commercial entrustment contract and introduce the remuneration compensation rights to protect relatively vulnerable parties.At the same time,the parties are encouraged to pre-determine the circumstances of the breach and the amount of compensation by autonomy of meaning.