The Restriction Of Discretionary Termination Right Of Commission Contract

Article 410 of the Contract Law of the RP China grants the parties of the commission contract the right of termination at any time without restriction,which leads to the abuse of the right.In order to protect the reasonable trust of the discharged party,it is necessary to restrict the right of discretionary termination of the commission contract.From the perspective of Law and Economics,the rule of discretionary termination right does not conform to Pareto Efficiency,and it is necessary to reasonably allocate the rights of both parties through restrictions.From the perspective of Sociology of Law,the arbitrary exercise of the right to terminate will increase the risk of contract performance.From the perspective of contract value,restrictions can alleviate conflicts between contract strictness,contract freedom,and contract efficiency.From the perspective of the historical origin,the right of discretionary termination right originated from the period of Classical Law can no longer adapt to commercial entrustment,and the basis of trust in the contract has been changed from subjective to objective and cannot be arbitrarily terminated.The commission contract has the characteristics of a continuation contract under certain conditions.In order to prevent the disadvantages of the continuation contract,it is also necessary to restrict the discretionary termination.By analyzing the rules of absolute limitation of discretionary termination right of commission contract in Comparative Law,this article considers that civil commission is a contract in the traditional sense which is appropriate to terminate this type of contract arbitrarily.Based on the consideration of the objectivity,economics and public interest of the trust of commercial commission,the right of discretionary termination should be excluded.The abandonment of the right of discretionary termination clause is common in practice,and Article 410 is an arbitrary clause,so the clause can be excluded by agreement of the parties.This paper uses the dynamic system method to analyze the items one by one in accordance with the foregoing conclusions.For mixed contracts with commission content,taking into account the integrity of the contract and the scope of the right of termination,etc.where the commission content does not account for the main part of the contract and does not have independence,the right of discretionary termination in the mixed contract should be excluded.If the commission contract is added to the trustee’s interests,such a relationship can be regarded as a security protection obligation in Tort Law,and itshould be properly cared for,but without the consequences of absolute restrictions.If the commission contract incorporates the interests of a third party,the expected interests of the third party shall be protected from the principle of good faith and shall not be discretionary terminated without the permission of the third party.The punitive and preventive nature of damages makes it relatively restrictive.The view which judicial practice believed the damage of discretionary termination doesn’t include the obtainable profit cannot make the damages play a relatively restrictive role and should be further clarified.In the case of free commission,under the circumstances of the trustee’s interests,the termination of the opposite party’s adverse period,and the trustee’s negligence in exercising the commission,etc.the canceler should compensate for the direct loss;In the case of paid commission,according to the Rule of Allocation of Risk,we can regard the exercise of termination of client as a reason which can be blamed for the creditor,and should compensate for the loss of obtainable profits.The exercise of the trustee’s arbitrary right to terminate can be regarded as a kind of sub-entrustment.The trustee needs to bear the actual losses and the additional cost that the client handle the entrusted matters in another way.There is no consideration relationship between the trustee’s interests and the entrusted affairs,so the trustee’s cost of obtaining similar contracting opportunities can be calculated for the trustee’s interests.On the basis of the above range,it is necessary to combine the damage compensation rule and offsetting rule.When the indefinite continuous commission contract is terminated,a notice to the other party within a reasonable period of time in advance is a restriction on the exercise of the right of discretionary termination.According to the current legal system,such rules are more reasonable to call advance notice.Advance notice termination has played an active role in preventing the disadvantages of indefinite continuous contracts.The nature of the commission contract makes it possible to become indefinite continuous contract,at this time,advance notice termination provisions can be introduced.However,neither the application by analogy nor the construction of general provisions can not solve the difficulty of application.The most appropriate method to introduce the rule of advance notice is build on the basis of Article 410 through legislation.A reasonable period of 40 days for the notice of termination of the commission contract is more appropriate,based on this,various factors need to be combined to determine the final period.