On The Restriction And Application Of The Arbitrary Termination Of The Entrustment Contract

The establishment of the right to rescind at will in the entrustment contract was initially due to the gratuitous nature of the entrustment contract and the relationship of trust between the parties.However,with the development of the market economy,the predominance of paid entrustment contracts over unremunerated entrustment contracts and the increase in commercial entrustment contracts have led to the gradual dissolution of the right of arbitrary discharge in certain cases.Article 933 of the Civil Code distinguishes between paid and unpaid contracts of entrustment in terms of the scope of damages,but it is still difficult to meet the needs of disputes over entrustment contracts in reality,and the right of arbitrary termination should be restricted by analyzing the essence of entrustment contracts.At present,there are different views and controversies in the academic field regarding the specific restriction path and way.In this paper,we study the restriction paths and methods of the right of arbitrary termination of the entrustment contract by means of case analysis,literature analysis and comparative method,and adopt the restriction path of statutory restriction combined with intentional restriction,and exclude the damage restriction path among them.In terms of statutory limitations,firstly,after comparative law analysis,the legislation in foreign countries adopts a typological distinction in terms of the scope of application,granting the right of arbitrary discharge to gratuitous entrustment contracts,and adopting stricter restrictions on paid entrustment contracts,commercial entrustment contracts and entrustment contracts involving the interests of trustees.This paper distinguishes civil paid entrustment contracts,civil gratuitous entrustment contracts and commercial entrustment contracts according to the strength of the trust relationship,allocation of interests and value inclination,and concludes that civil entrustment contracts are all subject to the right of arbitrary discharge,while commercial entrustment contracts are excluded from the right of arbitrary discharge.Secondly,the content of the principal obligation to pay is used to determine whether a mixed contract containing both commission elements and other elements should be subject to the right of arbitrary discharge.Finally,German law and French law do not expressly provide for a contract of trust involving the "interest of the trustee",while Italian law provides that the fiduciary contract is not extinguished by the fiduciary’s arbitrary termination unless there is a different agreement or justifiable reason.The Japanese law was amended after the establishment of the rule of"trustee’s interest",so that the right of arbitrary termination is no longer excluded from the commission contract involving the trustee’s interest,but is remedied by way of damages.In this article,we believe that our legislation and judicial practice can learn from the latest viewpoint of Japanese law and clarify that the right of arbitrary discharge can be applied to contracts involving "trustee’s interest".On the basis of the determination of the intentional restriction clause,the judicial practice and the theoretical view of the academia are combined to analyze the essence of the entrustment contract and discuss the type of intentional restriction,and conclude that the arbitrary release of the intentional restriction in the civil entrustment contract is invalid and the intentional restriction in the commercial entrustment contract should be valid.