Research On Restitution After The Dissolution Of The Contract

"Restoration" as an independent method of civil liability exists widely in the individual laws.Article 97 of the "Contract Law" also adopted "restitution" as one of the legal effects of contract cancellation.Due to the vague meaning of "restitution" and the oversimplification of the regulations,it is very difficult to understand "restitution" in the context of contract cancellation,which objectively caused the differentiation of judicial decisions,and "stomp" among doctrines.To fundamentally solve this problem,it is necessary to systematically sort out the concept and system value of the contract cancellation in the hermeneutic theory to realize the system reconstruction of the "restitution".In addition to the introduction and conclusion,this article is divided into five chapters:The first chapter is the theoretical analysis of the restoration of the contract.To carry out normative integration and concept tracing of "restitution",the restitution in China’s laws is obviously different from that of other civil law countries.Germany defines the restitution as "recovering to the state it should be when the fact of damage did not occur",and emphasizes the present time point;the mainstream view of restitution in our country emphasizes "recovering to the original state",and the origin of restitution is a certain time in the past.From the perspective of the right of request,the right to restitution after rescission of contract is not the right to return the property,because it does not comply with the basic method of property change in our country-based on legal behavior or legal provisions;It does not satisfy the constituent elements of the improper profit system and the normative value of correcting the imbalance of interests;the restoration of the contract to the original state should be included in the right of claims,because it meets the requirements of legal formal logic.The second chapter is the review of the legal norms for the restitution after rescission of contract.China’s laws on the rescission of contract misused the restoration system.The main value of contract termination lies in the future-oriented relief and restoration in the past,and the termination of the contract is precisely to protect the effectiveness of past payments,to avoid complicating the rights and obligations of the parties due to improper use of retrospective power.There is no distinction between the two in China’s law,causing system chaos.The normative value of restitution is to act as the ways and standard of liability for damages,which is both a method and a principle.The normative value of restitution is to act as the ways and standard of liability for damages,which is both a method and a principle.The former emphasizes the value of the original state,the latter emphasizes the scope of recovery.In our country’s laws,restitution as an independent method of responsibility has greatly reduced its meaning and deviated greatly from the normative value of comparative law.Another reason for denying restitution as an independent form of liability in the termination of the contract is that the restitution is not caused by a breach of obligations,its content can be eliminated through performance,there is no coercive force,and it does not meet the elements of liability.In principle,liability restitution is one of the legal effects of contract cancellation.It is stipulated by law or agreed by the parties in advance,and there is no need to consider the subjective state of the parties when requesting to perform the obligation of restoration.The third chapter is the deconstruction of restitution.Traceability is often used as a logical starting point for the study of contract cancellation and restoration,but in fact,it is a misunderstanding of the value of traceability.Three methods of hermeneutics are used to explore the relationship between the retroactive force and the restitution.There is no causal relationship between the retroactive force and restitution.In the construction of the contract cancellation and restoration system,if it feels that it should be returned after the contract is canceled,in order to strengthen the "legitimacy" of the obligation to return,the retroactive force will be introduced;If the contract is deemed to be unrefundable or unsuitable,it is claimed that the termination of the contract is not retroactive.This "tool-based" approach to retroactive force masks the value of retroactive force.The core of retroactivity is the “supposed state”,that is,“what should it look like” after the dissolution of contract: it is equivalent to whether the contract has been fully performed before the contract is concluded.The "supposed state" also provides a standard for restoring the original state,and whatever kind of state should be chosen,there will be a restitution of the original state.The specific decision-making of "spontaneous state" needs to be combined with value judgment analysis,which will be discussed in Chapter 5.The fourth chapter is to restore the connotation and system of the restitution after rescission of contract.Legal acts show an increasing trend in the authenticity of the contract ’s invalidity,dissolution of the contract,contract cancellation,and contract termination intentions,and the retention of their acceptance should also gradually increase,and the return effect decreases.The external relationship between "restitution after rescission of contract" and liability for breach of contract cannot be generalized.The "continuation of performance" breach of contract liability cannot be used together with the dissolution of contract to restore the original condition,and the two are obviously mutually exclusive;the "remedy" breach of contract liability is essentially in the category of continuing performance,and it cannot be used with dissolution of contract to restore the original condition;It can be used together with the dissolution of contract to restore it to its original state.The reason is that compensation for losses is also stipulated in the termination of the contract.Both the compensation and the compensation for breach of contract liability refer to monetary compensation.Article 97 "Restitution" and "remedy" in internal relations are both broad-based "restitution obligations" in the civil law.The former refers to the restoration of physical objects,and the latter refers to other forms of restoration other than the former.The fifth chapter is the system reconstruction of restitution after the rescission of contract.The core is to find the "supposed state".This chapter revisits the basic principles of the contract law and clearly prohibits both parties from seeking the benefits through the rescission of contract to restore the original system.The decision-making basis of the due state is divided into two categories: the principle of static interest priority and the principle of dynamic interest priority.The "supposed state" of the former assumes that the contract has not been concluded,and the current state should emphasize the restoration of the past state at the moment,and prohibits any party from benefiting from the termination of the contract;The latter’s "supposed state" is the state that it should be after it is assumed that the contract has been fully performed,and the emphasis is on the realization of the performance benefits.Choosing the former as the legislative basis,the reason is to fulfill the realization of interests,and the connotation of restoring the original state is overstepped.Instead of restoring the original state,it is rather a different way to perform the contract;In terms of structure,the realization of the fulfillment of benefits can also be stipulated in the compensation for the termination of contract damages,and there is no need to emphasize the restoration of the original condition.The innovation of this article is to extract the system value of restitution after the rescission of contract,and clearly convey that "money is not a panacea".Only the homomorphic return can protect the parties rather than the replacement of money;It establishes the standard of “assuming that the contract has not entered into an existing state” as the original state to ensure substantive justice.The shortcomings should also be pointed out: due to the lack of professional ability and lack of practical experience,the relationship between retroactivity and restoration is relatively advanced,and there may be interpretations that are different from most doctrines,and even fall into cognitive "traps",which is not conducive to the dialogue between the doctrines.In addition,due to limited foreign language ability,when reading extraterritorial legal articles and monographs,all refer directly to Chinese translations,which may lag in the timeliness of citing opinions.