On The Right To Rescind The Entrustment Contract At Will And Its Limitations

Article 933 of the "Civil Code" stipulates the statutory right of the parties to the commission contract to unilaterally terminate the contract.Scholars call this right the arbitrary right to terminate the commission contract.The right to arbitrarily terminate the commission contract as an "imported product" has many problems in our country.First of all,under China's civil and commercial legislation system,there are too many types of contracts that apply the right of arbitrary termination of commission contracts,so the scope of application is too wide;second,for commercial commission contracts and partially paid civil commission contracts,the exercise of the right of arbitrary cancellation will cause huge economic losses.However,there are still disputes about the scope of compensation for losses that should be borne by the exercise of the right to arbitrarily terminate the commission contract,and there are also contradictions between legislation and judicial practice.Finally,in real life,some parties avoid liability for breach of contract.Abusing the right of arbitrary termination of the commission contract not only threatens the stability of the contract,but also is not conducive to the real function of the arbitrary termination system.Based on this,the application of the right to arbitrarily rescind the commission contract must be appropriately restricted.In order to achieve this goal,this article mainly discusses from the following two perspectives:First,the discussion is conducted from the perspective of restricting the application of the right of arbitrary termination of the commission contract.First of all,it is advocating that the courts determine the nature of the contract from the basis of the contract,the content and purpose of the contract,and exclude the application of unnamed contracts;secondly,demonstrate the rationality of excluding the application of arbitrary rescission rights in commercial commission contracts.At the same time,taking into account the difficulty of clearly distinguishing commercial commission and civil commission in judicial practice,we summarized common commercial commission contract cases,and excluded commercial housing based on the cause of the case in the Provisions on the Causes of Civil Cases and the newly-known contract types in the Civil Code.The application of entrusted agency sales contracts and property service contracts to the right of arbitrary termination.Second,starting from the applicable basis for regulating the right of arbitrary termination of commission contracts,restrict it.First of all,it is not recommended to completely prohibit the application of the right of arbitrary termination in paid civil commission contracts.However,the meaning of the relevant provisions of the scope of compensation for losses in the legislation should be clarified,and the contradictions and conflicts between the legislation and the judiciary should be clarified and solutions should be found;Second,restrict the arbitrary termination of paid civil commission contracts for “substantial reasons”;finally,fully respect the autonomy of the parties' will,recognize the effectiveness of the parties' agreement on the exclusion of arbitrary termination rights and liquidated damages and give full play to the discretion of the judge,follow the principles of fairness and good faith,and limit the application of the right to arbitrarily terminate the commission contract in judicial practice.