Study On The Legal Rescission

Following with the integration of world markets, an international trend between transactions and business rules has growing up.Affected by this trend,the differences between common law and civil law in the area of commercial law is becoming less and less, showing mutual penetration and integration trend.The statutory state,whose law exist bisic is logic,couldn't sacrifice its logic of law when it Transplant legal system from other states.The text is built on the foundation of this conclution. The full text is divided into five parts :In the first part,we discusses the related concepts of the legal rescission.Dissolution of contract includes legal rescission and agreement rescission,and the distinction is legal rescission comes from law rather than agreement.Therefore the focus of this part is the Legal Right to Rescind.This right could taune up followed by the subject of right'own exparete,hasing no need of the other litigant's assists and agreement.For balancing the right between the parties ,it has to restraint the Right to Rescind strictly.Breach of contract between the parties and non-parties should not be the subject of this right. In addition to the main necessary restrictions,it includes the Resolutive Conditions, and the right's time limits.Following preceding part, we discusses the Resolutive Condition for the legal rescission in"the Contract Law". Although they are lead the purpose of contract irrealizable, the fortuitous event ,commercial risk,the alter of affair and Act of God are different. The fortuitous event ,commercial risk and the alter of affair are not the grounds for exemption.When it took place, the parties could not be immuned from liability, and shoud't invok their right to dissolution the contract .China should establish a system for the alter of affair,.when it happened, the parties could assece to court,claming of right to alter the contract or terminate the contract.In Part III ,the writer has a discussion on the suspention between the legal rescission and termination of the contract.China's current civil legal system with no clear distinction between the "rescission" and "termination", the concept of confusion. contract as a result of internal chaos in the legal system as the main reason. The chaos of conception is the major cause to the promiscuity of legal system. The writer suggests that our national should follow the example of civil law, distinguishing "rescission" and "termination", there is no-retroactivity when terminnate the contract,and it adequate for succession contract. The right of discharge of obligation at discretion should be contined in this legal system.In the fouth part , it discusses the deadline of the legal rescission .Every kinds of right should be restrincted by the time. Generally, the Legal Right to Rescind is on the stipulate of the Scheduled Period,and the right of claim is on the stipulate of the limitation of actions . the Scheduled Period can't extension,interruption or suspension as the limitation of actions. Although scholars have raised doubts, the writer believe that it is needful to distinction the Scheduled Period with the limitation of actions . the limitation of actions couldn't play a role in restricting the the Legal Right to Rescind .The time to count the Legal Right to Rescind's Scheduled Period is its float.there is no general stipulate of the Scheduled Period in Chinese civil law,it shoud be stipulate in the future. The fifth is the focus of this paper .It discusses the efficacity of the legal rescission ,and it is mutual corroboration with the third part of this paper The efficacity of the legal rescission connote two aspects : First,what's the characterize of civil jural relatiaon between the original parties, when the contract is dissolutioned; The second is whether it is retroactivity. These two aspects are linked with each other ,and includes the judgment of the other. The author believes that the when it use the the Legal Right to Rescind ,the claims between the parties have no longer exist, the parties may request to return of property ,and this right is the right of the real claim. the legal rescission has an organic whole retroactivity.This is not only chime with the fundamantal purpose of the legal rescission,but also avoid the probabilistic situation.Dissoluting the contract , the parties could still claim the compensation for damage,which is the trust interests damage in compensation.