| The institution of the rescission of contract,as a breakthrough to strict observance of contract,since the beginning of the Roman Law,has experienced a long development and change.Now,the rescission of contract has constituted an important part of debt law system.In case of obstacles of contract performance,it is often an efficient way to deal with the relationship between both parties.However,the statutes on rescission of contract are relatively simple and there are different opinions in theory,which is full of confusion and contradiction.Since the debt law reform in 2002,in regard of the rescission of contract in German civil law,the loophole in legislation has been complemented and new theories have been adopted,which all constitute a relatively complete,harmonious,institutional system.This article,from the perspective of comparative law,introduces the rescission of contract in Germany(including the termination of contract),analyses the constituent elements of rescission of contract,exercise of rights and legal consequences,as well as its historical origin,the current situation of legislation,its theory and judicial practice.After a relative deep understanding of German law,based on provisions in Chinese law,combined with theory and judicial practice,from the position of interpretation,the author makes a comparison and an analysis of rescission of contract between simple and vague provisions in Chinese contract law and German law.Finally,the article makes a comparison of rescission of contract in both countries from the macro prospective.It comes to conclusion that:1.The rescission of contract does not result in complete termination of obligation relationship.The legislative model,which puts rescission in the same position with other causes of termination of obligation,needs to be changed.2.The rescission of contract is a way to deal with obstacles to performance of the contract,rather than a form of liability for breach of contract.The fault of debtor is neither a necessary condition nor a sufficient condition for rescission of contract.3.The right of rescission is a formation right.The institution of rescission should not include termination of agreement.4.There should be specific provisions in regard of rescission of contract in Chinese law,to make sure that the scope of each cause for rescission is clear and relationship between rescission of contract and other institutions such as right of plea against the advance performance and liability for breach of contract.5.The provisions in regard of consequences for rescission of contract in Chinese contract law are too abstract,which leaves a lot of space for interpretation and leads to chaos in the theory.The current theory of German law and legislative structure are worth learning.6.Although there’s no distinction between rescission and termination of contract in Chinese law other than German law,from the prospective of law enforcement there’s no difference of two legislative models in nature.However,the German legislative model could make the legal structure clear and reduce the burden of legal interpretation.In the end,the article comes to conclusion that,clear internal logic and a unified value judgment is in any case very important for an institution or even a whole law system.To construct the institution of rescission of contract,the inherent smooth logic and harmonious relationship with other institutions must be taken into account,which is also worth learning from German law and becomes the goal of reform of rescission of contract in China. |
