Research On The Problem Of Termination Of Contract

As an important contract law system to maintain modern market order and fair, the validity of contract termination system has been concerned by scholars and legal workers, but because of the provisions of the problem in the contract law of our country is not clear and specific, this question also led to the phenomenon of the contract dispute, such as the specific object is the contract itself or the original contract, the termination of the contract have retroactive effect,or not, the nature and scope of the original recovery after the lift, whether the specific scope of the parties can claim damages and damages, because there is no clear provisions of applicable led to confusion in judicial practice and difficulties. Through comparison of the international representative countries on this issue of the mainstream views and legislative status, and based on the provisions of the contract law of our country the legal effect of contract termination, using the method of comprehensive analysis to analyze the effect of the most controversial issues in-depth, putting forward a reasonable proposal to perfect hope for the termination of the contract system in China. The article is divided into four parts, each part of the contents are summarized as follows:The first part is the theory about the termination of the contract law, this part is mainly on the comparison of several basic theories and legislation of countries around the world, through the understanding and analysis of each theory, and combined with the main trend of world, we hope to be able to give a more systematic and comprehensive understanding of the legal validity of the contract cancellation, and preparing for the following discussion. After analysis and comparison, the author finally agreed that "the clearing relationship theory", and explains the reasons.The second part is the research about the retroactive effect of contract termination, and different with most of the articles, the author did not directly pointed out that whether the termination of the contract has retroactive effect problem, but raised what is the subject of termination of the contract. In this problem, this paper first points out that the traditional understanding of the termination of the contract subject theory, namely the contract itself, and then put forward the reconstruction of the termination of the contract, that the termination of the contract should not be the contract itself, but should be the relationship of rights and obligations, this means that after the lifting of the contract the contract and no vanish retroactively. Based on this premise, the author concluded that the termination of the contract is generally between the termination of the contract have retroactive effect and non retroactivity, accurately speaking, after the lifting of the contract is in fact the retroactive effect, the contract rights and obligations to be destroyed, but there is no legal basis for the retroactive effect of contract, the relationship between it and still exist. The clearing relationship theory is the basic consistent.The third part describes the research of the termination of the contract restitution, the first analysis of the connotation of restitution and relationship with retroactive effect, and points out that the restitution should be understood in a broad sense, namely, prior to the interests of the state of the parties to return to fulfill the contract to take effect, not necessarily limited to the return of the original, and points out that there is no causal relationship between the restoration to the original state and the contract has no retroactive effect. In addition, this section also discusses the specific nature of the right of restitution, finally the author draws the nature of restitution petition right should be an independent right of claim. In general the restitution based on the connotation, the author points out that the scope of restitution, compensation, restitution should contain the value.The fourth part mainly discusses the problem of compensation for the damage after the termination of the contract, through a brief introduction about the problems of the legislation and legal practice at home and abroad, the author in the different discharge types on the basis of the compensation for damage done in-depth analysis, which mainly demonstrates the damages in breach of contract in the scope and nature, that should be the default damages, should contain the possible benefits.