On The Rescission Right Of Contract

The rescission of the contract system is not only an important role.Especially since2008,the international and domestic economic situation, theoccurrence of "mutation" significantly increased performance obstacles, the rescissionof the contract is a "common tools". Although the rescission of the contract, includingrescission of contractual rescission and legal rescission of three kinds ofsituations, but in practice, the dispute focused on the issue of legal rescission, scholarsoften discussed is legal relief,this paper mainly discusses the legal right ofcancellation. Starting from the meaning of the rescission of the contract, combinedwith judicial practice, mainly discusses the subject of the right to rescind the contract,the exercise of rights, the effect of exercising and to exercise the right to resciss theobjection problems. The full text is divided into five parts:The first part discusses the nature of the right to resciss the characteristics andfunctions of connotation and types of legal rescission, rescission of the contract andthe contract and the applicable object. The object of analysis that apply the right toresciss the contract including unilateral contract and the establishmentof contracts; property right of rescission contract except the individual case is the right of formation, other cases are simple right of formation.The second part discusses the understanding of exemption subject, and analyzesthe subject who is right of rescission, and that only the non defaulting party can enjoythe right to rescind the conclusion.The third part of the first comparative analysis of overseas to exercise thecancellation in three ways right, and points out that the legislation of ourcountry is notification mode. But in the judicial practice in China is different fromthe legislation, it is proved that by the court for means to inform is a notice, thisshould allow two cases occur in practice: the right of rescission notice after theprosecution to the court to resciss the contract or direct action to resciss the contract.Even for direct action to resciss the contract claims,the court should not rejectand should hear and the decision to confirm. rescission rather than a direct decisionto lift. Secondly, analyzed and discussed the nature and duration of the exercise ofthe right of rescission of the contract, and that for which neither legal, the agreeddeadline, no notice, should be unified for a period of one year; for there is no statutory,the agreed deadline,deadline to urge the three months according to the specificcircumstances to determine based. Finally, the discussion to resciss restriction.The fourth part firstly discussed the effect of rescission of the contract, after thelifting of the contract is concluded and the non retroactive and reinstatement of nodirect relation to not have retroactive effect, the problem of compensation forlosses; after the release are discussed after that compensation should be performinglosses (including benefits can be),and the calculation formula for the loss of thepreliminary design.The fifth part discusses the main objection system, the scope of content, methodsand applicable Objection Period and the legal consequence, finally obtained TheSupreme People’s Court on Several Issues concerning the application of the "PRCContract law" inter-pretation (two) twenty-fourth shall not apply to non rescissionright person issued a notice of the situation, so the court should make asubstantive examination. In addition, objection by the party should continue toperform before the judgment.