| The system of legal termination of contract arises in the process of the contract concept's evolution from contract freedom to contract justice, in order to end the conflict between Pacta sunt servanda and contract freedom. The system of legal termination of contract is a means to meddle in the autonomy of the will of contract parties. It is very important how to comprehensively deal with the termination of contract and the compensation for the damage, especially how to define the scope of the compensation for the damage. Because it is concern how to balance the private interest relation of the parties in the contract. The research of the compensation for the damage after legal termination of contract mainly involves three fundamental issues: firstly, why a party has the right to terminate the contract by law, i.e. what is the value in the system of the legal termination of contract? Secondly, what is the effect of termination of contract? what is the difference between the system of the legal termination of contract to the liabilities for breach of contract, and what is difference between the compensation for the damage after legal termination of contract to the compensation for damage for breach of contract? Thirdly, how to define the scope of the compensation for the damage after legal termination of contract? what is the effect of the term of liquidated damage?This dissertation carries out research surrounding the said fundamental issues of the compensation for the damage after legal termination of contract. Through the jurisprudential exploration, legislative research and comparative analysis to figure out the value function of the legal termination system, the effect of termination and developing trend of the definition of the scope of the compensation for the damage after legal termination of contract. Then retrospect and review the scope of the compensation for the damage after legal termination of contract in China's current legislation and judicial practice. Finally, the last section puts forward personal view on the definition of the scope of the compensation for the damage after legal termination of contract. This article is divided into four parts:The first part discusses theory basis of contract termination. Firstly, making a history inspection of contract termination and making a brief introduction of procedure of contract termination. Interpreting the termination of contract in the equalization view of Pacta sunt servanda and contract freedom, which is hardly mentioned, by the way of reducing contract termination history and implanting reasonable thought. In order to balance the conflict between Pacta sunt servanda and the freedom of contract, when a contract party enjoys the violation freedom, when specially a contract party violation lead to material breach, then its must pay the corresponding price for its choice, namely another party have the right to terminates the contract, even enjoys the right to ask the damage compensation. Law authorizes one party right to termination, and the party can exercise the right to termination unilateral to escape contract under law-made circumstances. Finally, the essay compares the system of legal termination of contract with the liabilities for breach of contract in the remedy approach.The second part discusses the doctrine and legislation about the effect of termination of contract. In this part firstly describing and analyzing the maindoctrine of effect of terminating contract-- direct effect, indirect effect,compromise of that and liquidation relationship. Making a good analyze the theory of liquidation relationship which is the main point of German Academic. The theory believes that carrying on the right to termination don't dismiss contract retroactively, just happening a relationship. The basis of contract still exist and the identity of debt is not be influenced, the section about controversy solution still exist and the damages of not fulfilling debt, obligation for deposit, damages for breaking contract and obligation for security still can be asked. Secondly inspecting and analyzing the effect of terminating contract in the different law system, such as the Civil Law, China Taiwan region ,the Common Law and the international contract law texts, especially analyzing the relationship between terminating contract and damages.The third part discusses the damages scope of terminating contract. Firstly analyzing the definition that often be discussed in the damages scope of contract and clearing the terminology about the damages scope of terminating of contract,which be used in the following--the concept of performance interests andtrust interests in the theory of German Law. Then carrying on the discussion that the three views of damages scope of terminating of contract in Civil Law: Damages the interests of the trust, Damages to the interests of contract, Contract damages and interest, and carrying on Comparative Law inspection about damages scope of terminating contract. Besides, this part compares the damages for terminating of contract with the damage for breaching contract.The forth part of this article discusses how to perfect the China Contract Law in the system of damages for termination of contract. After the discussion in the first three parts, this part focuses on reviewing the scope of damages of terminating of contract in our country. Firstly, coming to conclusion after questioning the basis of right to request which is regulated by Article 97. The conclusion is that the damages under the Article 97 are about the right to damages request which is not to hamper parties from exercising the right to request. The basis the creditors have the right to damages request is in the Article 107. Secondly, it makes a brief introduction that how the rules of damages scope of terminating contract change during the procedure of drafting Contract Law in our country to find out the problem in the China Contract Law. Then the essay analyzes the views of mainstream scholars and jurisprudence on this question in China. Thirdly, I put forward my opinion about the damages scope of terminating contract: the damages scope of terminating contract should conclude the damages of not fulfilling debt and the damages which is causing from the return of the debt relations, and the interest which is arising from relieving obligation of terminating contract should be deducted. Finally, in the last section discusses what the effect of liquidated damage term after terminating the contract. Then, the author puts forward his opinion that the liquidated damage term still restrict the contract parties. |
PDF Full Text Request