Study On Discretionary Right Of Commission Contract

Article 933 of the Civil Code is a repair and improvement on the basis of Article410 of the Contract Law.For the first time,it distinguishes the occurrence and limitation of the right to arbitrarily rescind the commission contract between free commission and paid commission,and separately stipulates the scope of damages after the improper exercise of the right of arbitrary rescission.However,the problem is that the content of Article 933 of the Civil Code is too general and only provides a framework.If the article is not explained in depth,the existing disputes still cannot be resolved.After distinguishing between paid and gratuitous commissions,some views question the legitimacy of the right to arbitrarily rescind in paid commissions.It should be clear that the parties to the contract have the right to rescind at will,whether in free or paid commission.The basis for the occurrence of the right of arbitrary rescission is not the gratuitous nature of the commission contract,but the principle of trust relationship.Considering the protection of the reliance relationship between the parties,when the basis of reliance is lost,the commission contract does not need to continue to exist.Therefore,the law gives the parties the right to be freed from the original contract to avoid falling into endless contractual obligations.But the relationship of trust is mutual,and trust in the other party is also worth protecting.In order to avoid the excessive infringement of the other party’s power caused by the improper exercise of the rescission right by the rescission right holder,it is necessary to limit the arbitrary rescission right of the entrusted contract.Article 933 of the "Civil Code" restricts the right to arbitrarily rescind the commission contract,which establishes different restriction systems in free commission and paid commission.In gratuitous commission,the restriction on the right of arbitrary rescission is only a relative restriction,that is,the party who improperly exercises the right of rescission needs to cause direct losses to the other party due to improper rescission time.There is no room for application in Article 933 of the Civil Code for the "trustee interest" rule in comparative law.When there is a "trustee’s interest",the commission contract actually includes both the commission element and other contract elements,which constitutes a new hybrid contract.At this time,the principle of trust relationship in the commission contract is on the same level of protection as other contract elements,and it is not possible to sacrifice other contract elements just to protect the trust of one party.Therefore,the application of the right of arbitrary rescission is excluded outside the hybrid contract at this time.When there is a "major cause" that seriously infringes on the interests of the parties,they can terminate the contract in accordance with the general statutory right to rescind in Article 563 of the Civil Code,thereby safeguarding their rights.From a certain point of view,when there is a "trustee’s interest",it can be considered that the right of arbitrary rescission is actually an absolute limitation,but this limitation is achieved by excluding it from the commission contract.In paid commission,the Civil Code only stipulates relative restrictions on the right of arbitrary rescission,and expands the scope of restrictions from direct losses to direct losses and losses of obtainable benefits.There is still room for interpretation as to whether there are other restrictions on the right of arbitrary rescission in the paid contract.Regarding the validity of the agreement that the parties have abandoned the right of arbitrary rescission in advance,it should be considered that the agreement is invalid in the gratuitous commission and valid in the paid commission.Article 933 of the Civil Code is an arbitrary norm in nature.The validity of this agreement in gratuitous commission is not recognized,because when such agreement exists,one party still exercising the right of arbitrary rescission constitutes a fundamental breach of contract,and it needs to bear the general statutory liability for breach of contract,which will make the parties in gratuitous commission liable.The scope is too large,resulting in an imbalance between the rights and obligations of the two parties,violating the principle of fairness.In paid commission,the scope of responsibility for improperly exercising the right of rescission is generally the same as the scope of liability for breach of contract.Even if the validity of the agreement is recognized,it will not cause an imbalance between the rights and obligations of the two parties.It is stipulated that a claim for damages is claimed from the holder of the right to rescind,so the agreement is valid.The "Civil Code" adopts a combination of relative restrictions and voluntary restrictions on the right to arbitrarily rescind the commission contract,adopts a relative restriction method in gratuitous commission,and adopts a combination of relative restrictions and voluntary restrictions in paid commission.restricted way.On the issue of compensation for damages after the improper exercise of the right of arbitrary rescission,the improper exercise of the right of arbitrary rescission belongs to the category of "non-performance of debts",and the nature of its liability belongs to the liability for breach of contract.Although the occurrence of liability for damages in Article 933 of the "Civil Code" is premised on the fault of the person who rescinds the right,the attribution principle of liability for breach of contract in our country adopts hybridism,and it is not inappropriate to interpret it as a breach of contract in nature.In the scope of damages,it should be considered that the "direct damage" here includes not only performance damage but also reliance damage.For the damage to the available benefits,the burden of proof should be appropriately lowered for the counterpart’s standard of proof.When there is a "reasonable possibility" of the available benefits,the counterpart has completed the burden of proof.This move is also to prevent the rescission right holder from wantonly infringing on the rights and interests of the other party by exploiting the loopholes of the excessively high standard of proof of available benefits,which defeats the purpose of restricting the right of arbitrary rescission in Article 933 of the Civil Code.