Normative Structure Of Contract Rescission ——The Transformation Of Japanese Law And That Of China

Since the implementation of the Japanese Civil Code,it has a history of more than one hundred years.In order to meet the needs of social and economic development,a comprehensive revision has been made in the Japanese Civil Code.The Rescission of Contract is one of the important contents of this revision of the Credit Law.In-depth analysis of the normative structure of Japanese contract recission,combined with the experience of Japan’s amendments to the law,this article tries to put forward suggestions on the interpretation and application of Chinese Civil Code.The Rescission of Contract is divided into statutory rescission,arbitrary rescission,and agreement rescission.This article focuses on the structure of the statutory requirements for the rescission of contract.This article is divided into seven chapters to discuss this topic.Chapter I introduces the background of the revision of the Japanese Credit Law.In order to meet the needs of changes in social and economic development,there has been several changes in the Japanese Credit Law.Before the revision,the Japanese Credit Law is based on the traditional composition of "credits and debts",hence the non-performance of the debts is divided into delayed performance,inability to performance and incomplete performance,besides the rescission of the contract requires the factors attributable to the debtor.The revision of the Credit Law has deleted the factors attributable to the debtor and re-arranged the constructure of contract rescission.Chapter Ⅰ introduces that Japan’s revision of the Credit Law has been influenced by the "New Theory of Contractual Obligations" and "Favor Contractus”.The new theory contends that the obligation derives from the contents of the contract,and it no long regards the rescission of the contract as a sanction against the debtor.Favor Contractus requires that the establishment of the contract shall be maintained as effective as possible,and the contract is allowed to be rescinded only when it reaches the level of fundamental breach.Chapter Ⅱ discusses the amendments to the requirements of the Japanese Credit Law regarding the rescission of contracts in detail.The start point shall be the nonperformance of the debt and require the non-performance to reach the level of "major non-performance".When the contract is to be rescinded,the creditor shall be entitled to rescind the contract after sending a demand to the debtor.In the event that "the frustration of the purpose of the contract" occurs,the creditor can directly rescind the contract without sending a demand.Chapter Ⅲ analyzes the theory on which the revision of the Japanese Credit Law based.The changes in the requirements based on the binding theory of the contract:the traditional "credit-debt" model is transformed to the "contract composition" model.The"German National Debt Law Modernization Act" that has had a great impact on the revision of the Japanese Credit Law is one of the models.The changes in the theory of contract binding force have led to a series of changes,including the establishment of the upper concept of debt non-fulfillment,the rearrangement of the specific provisions on the contract rescission requirements,and the settings of specific remedies from"cause approach" to "remedy approach".Chapter Ⅳ and Chapter Ⅴ analyze the requirements and the problems existing in the provision of the rescission of the contract in Chinese Civil Code.The understanding of the termination of the contract should be based on the achievement of contract purpose,and the frustration of the contract purpose should be construed from the perspective of legislative experience and comparative law.The Rescission of Contract lacks the establishment of the upper concept of "contract breach" in the provisions,and there are several problems of inconsistency in the specific constituent elements.Chapter Ⅵ proposes suggestions for the improvement of Chinese Contract Rescission at the level of interpretation and application of legal provisions.We cannot just stop at the step of not requiring the factors attributable to the debtors and the changes behind in the binding theory of the contract must be noticed,and measures shall be taken correspondingly.We can regard the frustration of the contract purpose as the core element in judging the rescission of the contract,and before the rescission of the contract,a demand shall be sent;in addition,if there is a situation where the purpose of the contract has already been frustrated,it is unnecessary to perform the demand procedure,and the creditor is entitled to rescind the contract directly without sending a demand.