The Application And Legal Effect Of The Right Of Arbitrary Termination Of Service Contract

Debt of service is a contract for the provision of service,which is often called debt of service,that is,service contract.The content of service contract is very rich,which is closely related to our life,but it is not listed as a typical contract in Chinese Civil Code,so it is of practical significance to standardize all service contracts using the existing typical service contract rules.Among them,the right of arbitrary termination is a special legal right of termination in the service contract.Compared with the debt of property,the debt of labor service cannot be enforced.When the trust foundation of the parties is shaken or the service recipient no longer needs the service based on the interest consideration,the loss can be stopped in time and the waste of resources can be avoided through this regulation.In the case that the Civil Code only provides the right of arbitrary termination for some typical service contracts,whether the right can be applied to other service contracts by analogy based on the characteristics of service contracts has aroused heated discussion in the academic circle.Therefore,it is necessary to analyze the theoretical basis,applicable conditions and applicable effect of the right to apply any cancellation of service contracts,and lay the foundation for constructing the general rules of the right to apply any cancellation of service contracts in our country.In addition to the introduction and conclusion,the paper consists of three main sections:The first part is mainly about the service contract and arbitrary termination of the theory overview.Firstly,by analyzing the different practices of the parties to the atypical service contract on whether they can exercise the right of arbitrary termination,it points out that there are some problems in the application of the right of arbitrary termination,such as unclear scope,unclear nature of behavior and inconsistent legal effect.Secondly,in view of the above problems,the scope of Chinese service contract and the concept and nature of arbitrary cancellation right are defined.It is clear that arbitrary cancellation right is a special legal cancellation right.Although it constitutes a breach of contract,it has the legitimate cause of preventing but illegal,therefore,liability should not be equated directly with the liability for breach of contract.It also points out the rationality and necessity of establishing the system of arbitrary rescission right in service contract.Finally,it distinguishes the termination right of indefinite continuance from the right of arbitrary termination,so as to apply them separately according to their characteristics in practical application.The second part mainly discusses the application of arbitrary rescission right to different types of service contracts.From the applicable path,exercise requirements,applicable restrictions three aspects of analysis.Firstly,the paper discusses the path of applying the arbitrary cancellation right rule to five types of basic service contracts,and concludes that the arbitrary cancellation right rule to apply the basic typical service contract is the basic,and if there are other provisions in individual service contracts,special provisions shall be applied.Secondly,according to the characteristics of different services,it summarizes the subject who has the right to arbitrarily rescind the general service contract and the time and way of exercising it.At the same time,it analyzes the competition and cooperation between the right to arbitrarily rescind and the general legal right to rescind when the cancelled party has defective performance.Finally,on the basis of the analysis that the rule of arbitrary right to rescind belongs to the arbitrary norm,this paper discusses the situation that the parties exclude or restrict arbitrary right to rescind based on the agreement,and the right to exclude some subjects to apply arbitrary right to rescind based on the policy considerations.The third part mainly discusses the legal effect after the person exercising the right to rescind arbitrarily.First of all,this paper reviews the main theories about the effect of contract dissolution in Chinese academic circles,analyzes the applicable characteristics of different theories from the actual effect of contract dissolution,and draws a conclusion that tends to "compromise theory".Secondly,under the premise that the termination of the contract only takes effect in the future,it discusses the parties’ obligation to restore the original state and the obligation to guarantee the defects of the completed part.Finally,aiming at the scope of compensation for loss of any rescission right,taking contract as the model,through comparative analysis of the damage compensation scope viewpoint in Chinese academic circle and judicial practice,and using relative legislative mode as reference,determine that the rescission person enjoys the right of damage compensation request for the loss caused by rescission.However,the final amount of compensation should still be limited by the principle of break-even and predictability.From this,the general rules of compensation scope of arbitrary termination right of service contract are explored.The main research methods used in this paper include:empirical analysis,comparative analysis,literature analysis,normative analysis and value analysis.This paper aims to determine the scope,elements and legal effects of the right to arbitrarily rescind service contracts by discussing the status quo of judicial practice,existing academic achievements and legal norms,and to construct the general rules of the right to arbitrarily rescind service contracts.