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Research on the Legal Contract Lifted Retroactive

Author: TianXin
Tutor: ShenYouLun
School: East China University of Political Science
Course: Legal
Keywords: contract statutory Retroactive effect Restitution
CLC: D923.6
Type: Master's thesis
Year: 2012
Downloads: 53
Quote: 0
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Abstract

Retroactive effect of termination of the contract termination of a contract is a veryimportant issue, which not only related to the termination of the contract effectivenessto determine, and determine a variety of legal relationship, interest after thetermination of the contract deal with the standards and the choice of methods, civillaw and common law countries have different views on the retroactive effect oftermination of the contract, and our "Contract Law" Notwithstanding the provisions ofthis, but not a clear statement led to explain the different. This article from thetheoretical point of view of legislation and jurisprudence to study the termination ofthe contract retroactive effect, to explore whether the contract is terminated retroactiveeffect, as well as the presence or Points (retroactive effect of the retroactive effectsuch that) the theory applies to China the actual situation of law, comparative analysis,which demonstrated the termination of the contract retroactive effect of thecompromise said that a reasonable theoretical basis of our contract is terminatedeffective system. This article discusses, I mainly use the logic analysis method, themethod of comparative law.About one million five thousand words, divided into four parts:The first part of the statutory contract to lift the definition of the concept. Thispaper focuses on the statutory contract to lift the retroactive effect, you first need to bestatutory contract to lift the concept of clearly defined, with similar and confusing theconcept of termination of the contract, the contract is invalid, and revocation of the contract, the contract to lift from the application of the case, the object, effectiveness,the main aspects, the concept of statutory discharge of clear contract discussion of thetext of the contract retroactive effect, so as to provide a clear premise.The second part， the termination of the contract retroactive effect of legislationand jurisprudence comparison. A Comparative Study of the Two main legislative andlegal.Resolved from the legislation of the German Civil Code the provisions of theItalian Civil Code have retroactive effect, and the common law on the statutorydischarge of contract provisions, and to lift the statutory civil law theory developmentShijie Shao statutory contract in China lift the improvement of retroactive effect, thesystem has a good reference.The third part， the statutory contract to lift the retroactive mechanics said theintroduction of its draw. Traceability is actually a retroactive effect, that not haveretroactive effect of the controversy are two theories are essentially the sameobjectives, compensation losses. But the two doctrines in the path to solve theproblem, the return of the nature of the payment of damages are very different. From alegal point of view, the compromise is the solution to best support the theory andpractice of retroactive force of indisputable choice. Interpretation of the relevantprovisions of the "Contract Law".Secondly, the combination of legal practice, twokinds of retroactive mechanics said that the pros and cons of a correct theoretical basisfor the contract to terminate the effectiveness of the system. To demonstrate China’sstatutory lifting of the retroactive effect, to select a reasonable compromise said.Part IV, after the contract to lift the statutory rights and obligations ofownership.Restitution and compensation range is after the contract to lift the statutoryrights and obligations of the problem, and asked in favor of the statutory contract tolift retroactive effect, and demonstrates the termination of the contract retroactiveeffect, the theoretical basis for restitution and compensation. Specific analysis fromthe nature of restitution, restitution, and damages the range of several aspects ofargumentation of the existing legal provisions statutory contract to lift thereasonableness of the retroactive effect, fold said.

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