The Application Of The Right Of Arbitrary Termination Of An Entrustment Contract And Limitations Of

With the rapid development of service-based global economy,as a service contract,the content of commission contract presents a trend of diversification and complexity.The foundation of entrustment contract is not only based on trust relationship,but also focuses on the reasonable application of arbitrary rescission right and the remedy way of improper exercise of arbitrary rescission right.Article 933 of the Civil Code,makes more detailed provisions on the system of arbitrary rescission right,divides the entrustment contract into free entrustment and paid entrustment,and stipulates the scope of compensation respectively.To a certain extent,it restricts the improper exercise of the party’s right to rescind the contract.However,the revision has not completely solved the difficult problem of legal application of the right of arbitrary rescission.First of all,in terms of the scope of application of arbitrary rescission of entrustment contract,it is the consensus of theory and judicial practice to limit it.The Civil Code includes the loss of available interests into the compensation scope after the exercise of the right of arbitrary rescission of a paid entrustment contract in order to limit the improper exercise of the right of arbitrary rescission.However,this kind of restriction path does not directly restrict the subject who initiates the right of arbitrary rescission,which is inconsistent with the inherent logic of law,and the paid entrustment contract lacks the legitimate basis for exercising the arbitrary rescission right.Secondly,the core of the determination of the validity of the special contract to abandon the right of arbitrary termination lies in whether Article 933 of the Civil Code is a mandatory norm.Different understandings of the normative attribute of the article lead to the absence of the validity determination standard of the special contract in practice and the different judgments.Finally,in terms of the liability for damages after the exercise of the right to terminate the contract,it is difficult to obtain effective relief for the loss of interests of the terminated party in accordance with Article 933 of the Civil Code due to the lack of judgment criteria for attribution and the difficulty in proving available interests.The right of rescission is mainly based on the free nature of entrustment contract and the special trust relationship between the parties.Although there is room for the function of trust relationship in the paid entrustment contract,the legitimacy of its application of arbitrary rescission right has weakened.Therefore,we should treat the contract of free commission and paid commission differently.In the scope of application,"rescission based on major cause" should further restrict the exercise of arbitrary rescission right of paid entrustment contract;At the same time,it is necessary to exclude the arbitrary right of rescission for mixed contracts,otherwise the special rules will be generalized to other contractual relationships.In the determination of the validity of the special contract for the abandonment of arbitrary termination right,the normative nature of Article 933 of the Civil Code should be understood as an arbitrary norm,and the validity of such special contract should be determined respectively according to the different value orientations of paid entrustment and free entrustment: The validity of this kind of special contract should be affirmed in the case of paid entrustment,while the validity of the special contract should be denied in the case of free entrustment,so as to fill the inherent defect of determining the validity of the special contract only according to the normative nature.In the discretion of loss compensation liability after the exercise of arbitrary rescission right,the determination of the imputable cause should be based on the "loss regularizable theory",that is,the party concerned should bear the liability for loss compensation if there is fault in the rescission behavior;In the specific determination of available interests,the standard of proof of "distinguishing between facts and amounts" should be established,and the reasonable determination of the loss of available interests of the terminating party should be made in combination with the rules of derogation and predictability.