The Judicial Application During The Objection Period Of Contract Rescission

Article 96 of the contract law stipulates the objection system of contract rescission,which makes it possible for the opposite party to dissent.Article 24 of the judicial interpretation of the contract law(ii)stipulates the objection period system,which makes it possible for the opposite party to exercise the right of objection.Although the law has made provisions on the period of opposition,there is still a large blank area.There are still many disputes on the right of opposition and the period of opposition in the theory and judicial application,especially the phenomenon of "different judgments for the same case" and "different judgments for similar cases" in practice,which seriously affects the judicial authority.Through the inductive analysis of the case,the main focus of the dispute is the difference in the recognition of legal effect when the objection is overdue,that is,the court in the overdue objection to take the form of review or the actual censorship has a huge dispute,which directly affects the status of the contract and the assumption of the responsibility.Therefore,this paper begins with the recognition of the value established during the period of objection,a clear definition of its nature,followed by the consideration of the factors during the period of objection,and finally analyzes the legal effect of the overdue objection.Insist on this line of thought one by one analysis,in order to play a better role in the judicial practice during the objection.The necessity and nature of the establishment of the contract cancellation objection is the premise that needs to be clarified first.The right of dissent is accompanied by the right of rescission.The setting during the dissent period provides space for the opposing party to exercise the right of dissent.As for the definition of the nature of the objection period,because it is quite related to the nature of the right of dissent,the author sorts out the typical doctrines of the nature of the right of dissent,analyzes their respective benefits and drawbacks,and then puts forward the author’s own point of view,that is,the objection right is to form the right of defense,and has a special attribute of the right of formation.On this basis,the nature of the exclusion period during the opposition period is further defined,based on the clear connotation of the objection to better analyze and solve the problem.In this paper,the objection period is defined as the exclusion period,whether the period is directly affected by the judgment of its legal effect,so this paper,by considering the factors affecting the determination of the objection period in general and special circumstances,lays a foundation for the discussion of the legal effect of the objection after the expiration of the objection period.In general,the determination of the objection period is closely related to the starting point,the term,and the retroactivity.When deciding what is the starting point of the objection period,the author analyzes the case and theory,usually three months from the time when the notice reaches the opposite party;If the party dissolving the lawsuit fails to notify the other party,it shall be three months from the date when the other party receives the copy of the statement of complaint.There is a gap between the "Contract Law" and the "Explanation of Contract Law II".When the contract cancellation notice is between the two,whether the retrospective force during the opposition period will affect the determination of the opposition period.The author believes that it is more reasonable to have no retroactivity during the objection period.The objection period is extended for three months from the date of implementation of the Interpretation of Contract Law II.In the process of application during the objection period,certain special circumstances will inevitably be encountered,such as the special agreement of the parties on the objection period,the objection mode of non-litigation,and the emergence of objective obstacles.At this time,whether the objection period will be changed as a result becomes the discussion point.The author believes that the parties agree that the opposition period does not violate the law and damage the interests of the parties.It is agreed that the short objection period will help to urge the contractual relationship to be determined and validated as soon as possible;if the agreement is too long,it will violate the purpose of the law and must be given by the court at its discretion.Regarding the way in which an objection is filed,it is limited to litigation or arbitration.The adoption of the non-litigation method by the parties does not result in a suspension of the objection period.In the event of an objective obstacle,especially force majeure,the calculation shall be suspended during the opposition period,and the extension or extension of the extension of the statute of limitations shall be granted after the obstacle is removed,with a view to achieving a balance between the stability of the legal order and the exercise of the rights of the parties.The consequence of the delay of objection to contract rescission is essentially the problem of how to judge the objection brought by the dissenting party against the contract rescission after the expiration of the objection period.By summarizing and analyzing the cases of judicial practice,the court may adopt two completely different trial modes of formal review or substantive review due to the different understandings of the court on interpretation ii of contract law when the objection is overdue,and of course,different judgments will be made.This is also the basis for different judgments of the same case or similar cases in judicial practice,which will reduce the loss of judicial authority and credibility in the long run.The author based on the reasonable parts of the two modes and question analysis,finally adopted on the basis of respect for judicial interpretation,adopt interpretation theory to interpret the law,will not be used for objection period for rigid "one size fits all" approach,but adhere to review form is given priority to,examination as to substance is complementary to that overdue objection to the legal consequences.The relieving party shall bear the preliminary burden of proof to prove that its rescission conforms to the statutory or agreed right of rescission.In short,the court only needs to formally examine whether a release notice has been given and whether the opposing party has objected during the period.If the contract is terminated because the person who has no right to terminate the contract does not have the right to terminate the contract,the party in good faith can be held liable for damages for breach of contract to maintain the balance of interests of both parties.