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On the exercise of right of cancellation

Author: ZengXiangSheng From: www.yourpaper.net Posted: 2010-06-24 15:41:34 Read:
Keywords: termination of the contract rescission right limit of right of formation
Abstract: the basic concept of contract law based on, a legally valid contract, it should be possible to make it effective, however, the conclusion of the contract after the actual implementation process, when one party breach of contractual obligations or unforeseeable circumstances, the contract has become a party to the disease, if not allow the escape of the parties contract binding, is too harsh, so it is necessary to give it the right to rescind the contract.Remove right belongs to the right of formation, how to exercise the controversial.In property law, exercise the right of rescission should not be necessary to litigation; procedural notice not to exercise the right to terminate; legal provisions on the exercise of the right of rescission applies not only to the legal relief, also applies to the contract; the so-called automatic discharge is not right of termination mode.
purpose of legislation is to encourage trading contract and stabilize the order of trade, contract law, not allow the parties to change or remove.But the myriads of changes, the objective situation, when a party serious breach of contractual obligations or unforeseeable causes such as, the contract can not achieve the purpose of the contract or lose significance, has become the severe illness, contract law of all countries have set up corresponding "escape" mechanism, allowing the parties under certain circumstances through the exercise of right of rescission to terminate the contract relationship to escape the shackles of contract.Remove right belongs to the right of formation, direct legal consequences of exercise of the right of rescission is leading to the contract relationship between the parties terminate.The countries of the continental law system in their right of rescission of the exercise, the conditions and procedures for the specified characteristics.In our country's theory and practice in the exercise of the right to terminate if necessary to litigation, notice whether to exercise the right to terminate the pretage procedure, to exercise the right to terminate the legal provisions are mandatory norms and terminate automatically whether the right to rescind, awareness of the problem is not the same.
exercise a right of rescission, whether to suit for the necessary?
for the exercise of right of rescission, looking at all the civil and commercial law, can be divided into notice of rescission of judicial relief and two kinds of legislation.[1]
the so-called notice of rescission, is that as long as the right to terminate a contract has been to opposite party expressed the rescission of the contract means the termination of the contract, can produce effect, without other special form.Such as the "German Civil Code" 349th stipulates: "the termination of the contract, should be based on the intention to the other party for.""Civil code of Japan" 540th stipulates: "in accordance with the contract or the requirements of the law, a party shall have the right to terminate, the lift on the meaning of.""The United Nations Convention on Contracts for the international sale of goods" twenty-sixth stipulates: "a declaration of avoidance of the contract to the other party, must notice becomes effective".The legislation guiding philosophy is: is a kind of the parties can terminate the contract right, exercise and not of course is not constrained, there is no need to impose other requirements of form.
judicial relief, also called the decision to lift the lifting, litigation, means ex-dividend exercise not only solution inform parties, must also be with the help of the national judicial procedures to complete."French Civil Code" judicial relief pattern mining, the law the 1184th stipulation: "the bilateral contract, where one party does not fulfill its obligations, as a condition.On this occasion, the contract does not discharge, creditors in the other party's obligations are not fulfilled or may have the right to choose: still in the contract, the other party to perform forced, or requests to terminate the contract and claim damages.Rescind the contract shall apply to the court for the court, and to give the accused a period as the case."For the reasons of legislation, the French scholars pointed out, "in the civil and commercial cases, refuse to perform the contract must be decided by the court.French law does not allow one party to the contract because the other party breaching and refusing to perform the contract, and we must resort to the court.The reason for this is, only to be a serious violation of the contract until circumstances allow its refuses, because one party lost the contract should the proceeds, the promise has no meaning.Therefore refuse to perform the contract without court supervision, as the lift may lead to the other party a considerable amount of compensation fees; and, as mentioned above, the court should review in the circumstances, given the fault to a party to recovery time (wide suspended) to fulfill its obligations is appropriate.If there is no additional time is appropriate, the court often do not allow the termination of the contract".[2] in short, think this legislation mode, the exercise of the right to terminate not only by the will of the parties to decide, but need to be determined through the judicial process review, on the.
notice of rescission of the rescission right of people is a very convenient and effective relief measures -- whether to exercise the right to rescind, only depends on its meaning, its shortcoming is easy to exercise the right to terminate at will, to a certain extent, will contribute to the parties at the termination of the contract, harm to the transaction security, causing great loss relative disadvantages.Although the judicial relief to help control the exercise the right to rescind, meaning, but is not conducive to human use to relieving the contract, the contract in time to avoid greater losses from the right of Rescission Right of cancellation, function greatly.Taking into account the judicial relief way too harsh, adopt the legislation of the country will also made some modifications, such as the French law stipulates two kinds of exceptions the judicial relief: one is the legal exceptions, for food and other real estate sale, the French law on the termination of the contract without the procedure; two agreed exceptions that is, if the contract is terminate the contract expressly exclude judicial relief, is not to the court.
right of Rescission Right of formation.[3] generally, right of formation in the majority of cases, by the right directly to the relative effectiveness of human meaning can be, does not need to make a request to the court, also do not need to enforce, only in specific situations, the need to exercise the right of formation through judicial means, have effect of res judicata in judgment with.The first case is a simple right of formation, a situation belongs to the right of formation.Among them, the simple form right belongs to the private force relief, is the formation of the right, right of formation belongs to public power relief, is a special case of the right of formation, is applicable only in a specific range.For the scope of application of right of formation, different understanding of the theory, some scholars believe that the right of formation is mainly applied in the field of family law and company law, [4] such as dissolution of marriage as well as the authority on behalf of the company, the company dissolution, the deprivation from shareholders, some scholars believe that suitable for family law field, relates to the interests of the third areas and some people's livelihood when apply [5].Right of rescission is right of formation, should follow the general theory of exercise of right of formation.
civil legal relationship, can be divided into property law relationship and identity of the legal relationship.The relationship between the so-called personal law is refers to the civil subject because of personality and identity between interest and the formation of civil legal relationship; the legal relation of property refers to the civil subject for the ownership of the property and circulation formed, with direct material content of civil legal relationship.This paper thinks, the Rescission in property law should not be necessary to litigation.The reason lies in: first, notice of rescission can fully reflect the solution as the essence of right of formation right, namely the right people in its meaning and make separate legal relationship, change or destroy.Second, notice of rescission of contract can fully carry out the principle of autonomy, right of rescission is an option's exercise of the right, whether the right to terminate the contract is the embodiment of Party autonomy.Third, the relationship between civil mainly in property law, property law is the norm rather than the exception in civil relations; fourth, the property of legal relations, worry about the notice of rescission may cause client willful and transaction between the confusion is not necessary, because the notice of rescission applies only to right of formation itself, does not apply to the right request to exercise the right of formation generated, but claim must be through legal channels (unless the party have no objection), in this process, first must form a right behavior on the exercise is effective in study; fifth, proceedings to lift in essence is the judicial behavior and public relief, undeniable through the judicial review to the referee, the termination of the contract can guarantee the validity of contract rescission recognized by law, has directly forced the confirming force, is conducive to the maintenance of the rescission right of benefit, but also can avoid the parties free to terminate the contract, but its disadvantages are also obviously: one is for the parties to the transaction caused inconvenience, judicial behavior time delay so that the parties can not be quickly
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