On The Exercise Of The Right To Rescind The Entrustment Contract At Will

The existence of the right of arbitrary termination of the commission contract is based on the trust relationship between the parties,which has a specific historical background,that is,the non-compensation of the commission contract.Initially,the Roman Law determined that entrustment only included the situation of free of charge.The agent performed the contract content to the client for free out of goodwill,and the client did not need to pay any consideration for this service,which could be regarded as "the gift of the client's service".Therefore,in order to balance the relationship between the two parties and to protect the legitimate rights and interests of the party in a relatively weak position,the right of arbitrary termination is introduced.However,the rapid economic development now drives the deepening of civil and commercial exchanges,and the form,content and scope of exchanges have changed greatly compared with before.The dominant position of free entrusting as a legal form of entrusting no longer exists,while civil paid entrusting and commercial entrusting play a more important role.In such a case,the right of arbitrary rescission applicable to free can not adapt to the development of The Times,and it is necessary to restrict it,balance the relationship between the right of arbitrary rescission and the reasonable and effective existence of the contract,so as to ensure the realization of the original purpose of the establishment of the system.Second,in the judicial practice of arbitrary termination right abuse is widespread,and because the law more blank in a specific trial of discretion to apply more,inevitably will present a different connection with the given situation,to limit any termination right implement in the case at the same time also affects the impartiality of the sentence.Therefore it is necessary to limit any termination right,this restriction does not violate the essence of "arbitrary",any termination right while giving the rights of the parties to choose contract term or not,but this is not to encourage the parties to terminate the contract,but the law and special care for the characteristics of the agency appointment contract of the parties,in order to better protect their legitimate rights and interests,improve the efficiency of resource utilization,final purpose is to encourage trade.At present,Article 933 of the Civil Code has made new provisions on how to exercise the right of arbitrary termination and the responsibility after exercising the right of arbitrary termination: "The principal or the agent may terminate the agency contract at any time.If the termination of the contract causes any loss to the other party,the party terminating the agency contract without compensation shall compensate the other party for the direct loss caused by the improper termination time,and the party terminating the agency contract with compensation shall compensate the other party for the direct loss and the benefits that can be obtained,except for the reasons not attributable to the other party." This new provision reflects a better balance between the weakened contract stability and the free choice of the parties due to the existence of the right to terminate at will.However,this law does not solve all the current problems,such as the specific scope of the right of arbitrary rescission,the validity of the intentional choice made by the subject of the contract,the nature of the compensation for damages,and how to implement the compensation.So this article first analyzes the arbitrary termination right position in the general termination right,a special legal right to terminate any termination right of status,or when there is no special is made,only through the legal right to terminate or agreed termination right processing the contract content,ruled out any applicable termination right space right now,only when there are special provisions in the typical contract can only be exercised;On this basis to determine its basic characteristics and effectiveness of the exercise.Secondly,based on the typical disputes existing in the current adjudication,such as the limitation of the exercise of the right of arbitrary termination,the agreement of the subject of the contract and so on,this paper further analyzes the problems existing in the exercise of this right in the commission contract.Thereafter is to solve the current problems,the first is arbitrary termination right can not be unlimited,and the need to distinguish between different types of commission,in order to better in harmony with the purpose of the contract: free of charge in principle in the contract allows any applicable,paid to entrust limit in the arbitrary termination right,mixed contract termination right to exclude any termination right;The second is to analyze whether the contract subject's special agreement on whether the right of arbitrary rescission can be applied in the contract is valid.Can the subject of the contract be bound? From the point of view that the parties specifically exclude the right of arbitrary rescission in the contract,the agreement made by both parties is determined to be effective.Thirdly,it interprets Article 933 of the Civil Code,clarifies the conditions and scope of the exercise of the right to claim for damages,and discusses the conditions and specific scope of the liability for damages entrusted by paid and free entrustment respectively.At the same time,since the right to claim compensation in the future after the contract is terminated is a kind of invisible loss that is difficult to quantify,in order to effectively protect the legitimate rights and interests of the subject of the contract,the "survival of the contract" is expanded here from the essence of the compensation.At the same time,it rationalizes the right of compensation according to the risk burden rule to reasonably protect the rights and interests of both parties in the entrustment contract.