Research On Judicial Application Of Arbitrary Termination Right Of Entrustment Contract

The issue of arbitrary rescission of commission contract has been controversial in theory and practice circles.Although Article 933 of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)has improved the right to arbitrarily rescind the commission contract,there are still three problems to be solved in the judicial application.First,there are mixed contracts containing the factors of the commission contract,and there are different opinions on whether the rule of the right to arbitrarily rescind the commission contract can be applied.Second,there are different standards for determining the validity of the special agreement excluding or limiting the right of arbitrary termination of the commission contract.Third,the stipulation on the compensation scope of the arbitrarily rescinded party in different types of paid commission contract needs to be further perfected.In this context,by summarizing the existing theories,it is concluded that the improvement of Article 933 of the Civil Code is not enough to solve the above three problems,and further consideration should be made from the perspective of distinguishing civil and commercial entrustment from the principal and the trustee.For the mixed contract with the factors of commission contract,it is necessary to determine whether the mixed contract can apply the rule of arbitrary termination of commission contract based on the source of the principal payment obligation.For gratuitorial entrusting,the special agreement in civil entrusting excluding or restricting the party’s right to arbitrarily rescind shall be invalid,while the special agreement in commercial entrusting shall be effective.In the case of paid entrustment,in civil entrustment,the special agreement excluding or restricting the principal’s right to arbitrarily rescind shall be invalid;In the case of a commercial commission,such special agreement shall be valid;Such special exception is valid when there is an interest of the trustee in the commission contract.In addition,the special agreement excluding or limiting the trustee’s right of arbitrary termination is valid in principle in the paid commission.As for the compensation scope of the arbitrarily rescinded party of a contract of paid entrustment,when the principal of paid entrustment exercises the right to arbitrarily rescind,the compensation scope of civil entrustment should be limited,while commercial entrustment does not need to be limited.When the trustee exercises the right of arbitrary termination in the paid entrustment,the scope of compensation should be discussed according to whether the entrusted affairs can be handled by itself or by others after the trustee arbitrarily rescinded.