Introduction: Basis " contract law " the 93rd, 94 regulation, remove in what cannot be decided or agree below case, add up to those who agree to did not talk things over with the other side with one party party, do not get home remedy to remove forcibly contract, ask the other side is assumed remove the total loss of the contract. Did not reach in both sides when agreeing, any one party party all should continue to fulfil the right that the contract agrees and obligation, a when breach of contract agrees, should according to " contract law " the 107th regulation, assume continue to fulfill, take remedial action perhaps compensates for the responsibility of breach of contract such as the loss. Accordingly, not was opposite in both sides whether to remove when the contract reachs unanimous opinion, one party puts forward to remove the contract rejects the other side to reduce losing to suggest, insist to ask the other side is assumed remove the total loss of the contract, abandon fulfilling a contract at the same time, cause self interest to be killed by damage, answer to be in charge of by oneself.
Juridical argument
Remove in what cannot be decided or agree below case, add up to those who agree to did not talk things over with the other side with one party party, do not get home remedy to remove forcibly contract, ask the other side is assumed remove the total loss of the contract.
Brief introduction of details of a case
One, 2004 " 51 " during, travel agent of the beautiful in the accused was organized " 3 inferior free person trip is round " , the specific service that travel agent provides for this journey group is: Offer for the tourist airline ticket going there and back and enter a public house, the swing after the tourist arrives. On April 21, accuser Meng Yuan travels to attend this round, with in beautiful travel agent was signed " in travel agent of beautiful international collaboration 3 inferior agreement " . Consultative agreement: Travel agent reachs the rest for Meng Yuan 5 people are offerred Beijing went on April 30 Hainan 3 inferior with the airline ticket that returned Beijing on May 4, offer 6 people to be entered 3 inferior the 3 gardens room of big public house of coconut forest beach, the fee that pays for this each is 3580 yuan. The agreement returns an agreement: The airline ticket that travel agent offers is group discount ticket, do not get an autograph to turn, exchange a purchase, change.
2, on April 24, accuser appears with Beijing and other place " SARS " for epidemic situation, oral raise give up league membership, travel agent of the beautiful in asking returns total money. Beautiful travel agent expresses in, can make over seat number and hotel for you, but do not agree with all refund, both sides fails to reach unanimous opinion. On April 26, accuser reflects a condition to Beijing tourism bureau, this bureau is mediated not if really. On April 28, accuser faxes withdraw from a young league of travel agent of the beautiful in the announcement, in beautiful travel agent deals with formalities of withdraw from a young league not formally with accuser for, reject to remove contract. On April 30, 5 people did not join accuser and the rest round travel, the CZ3112 scheduled flight that beautiful travel agent books in is empty 6 more than seats; 5 people also did not join accuser and the rest the guest room of big public house of coconut forest beach that the accused books. About in the airline ticket with beautiful imprest already travel agent is mixed inn charge, contest spy travel agent expresses, charge of this airline ticket belongs to section of charter flight bill, press an agreement cannot refund; Big public house of coconut forest beach expresses, "51 " during the golden week order a room to have technical agreement, the guest was not entered also not refund.
3, the travel contract that accuser thinks its and the accused are signed is the contract that entrusts property, the agreement that both sides signs is pattern contract, the accused did not inform my airline ticket and house money to cannot be returned, because this agreement is shown,break fairness. Request: Cancel this agreement, return 21480 yuan by the accused and bear legal cost.
Juridical result
Court of people of division of Beijing announce military thinks: One, accuser asks to avoid duty remove whether does the contract hold water. Travel agent of the beautiful in accuser Meng Yuan and the accused signs " 3 inferior free person trip is round " travel contract, it is the expression of bilateral and true meaning, the content of the contract not of be bad law prohibit sexual regulation, should maintain effective, both sides should abide by the right that the contract agrees and obligation. After the contract is signed, meng Yuan consign the total travel expenses of 6 people, beautiful travel agent booked 6 man-machine ticket and hotel guest room for Meng Yuan in, paid fee. So far, both sides had fulfilled respective obligation according to the agreement of the contract. Be in in after beautiful travel agent fulfilled him obligation, meng Yuan in order to appear " SARS " for epidemic situation, requirement and in beautiful travel agent removes the contract is total refund, its are avoided duty remove the exercise that the contract requests to counterpoise, should accord with " contract law of People's Republic of China " (contract law of the following abbreviation) regulation.
2, how should the duty that the contract did not perform decide.
Contract law the 93rd regulation: "Party talks things over consistent, can remove contract. " in this case, although accuser puts forward to remove contract, but added at the same time the condition of all refund, how didn't travel agent of the beautiful in accuser and the accused remove the contract reachs unanimous opinion, should hold break a promise of accuser home remedy. Accuser calls break down of travel agent of the beautiful in already informing the contract, but when accuser claims the termination of a contract, in of beautiful travel agent buy on sb's behalf airline ticket and generation order hotel behavior to had happened, its law consequence should be assumed by accuser. The agreement that accuser weighs to both sides is signed is medium the pattern contract that beautiful travel agent offers, beautiful travel agent is in in its airline ticket and house money were not informed to cannot be returned when signing a contract, bilateral agreement is shown break fairness, reason contract is invalid, and You Zhongjia travel agent assumes all responsibility. Via checking, already carried in bilateral agreement bright " airline ticket is; Group discount ticket, do not get an autograph to turn, exchange a purchase, change " , this specification both sides is in when signing a contract, already made an agreement with respect to concerned matters concerned, the pattern contract that this agreement does not belong to contract law to set prohibits condition, the right that accuser enjoys according to the agreement and in the service that beautiful travel agent provides comparatives, advocate its are shown break fairness to do not have legal basis. As a result of accuser not Xiang Zhongjia travel agent is offerred board the plane person list, also did not entrust its to make over airline ticket, travel agent of the beautiful in causing cannot be taken already other the airline ticket that 5 people already paid a ticket the money, cannot give to airline ticket again make over, the agree carries the pecuniary loss that produces from this. For the service that accuser provides with enjoying travel agent, travel agent of the beautiful in the requirement returns 21480 yuan by the agreement, do not grant to support lawfully.
After the court decision, meng Yuan refuses to obey, to Beijing court of the first intermediate people puts forward to appeal. Main appeal reason of Meng Yuan is: With in the viatic agreement that beautiful travel agent signs, not other the accurate circumstance such as the specific full name that joins viatic staff, should maintain an agreement to disable; Beautiful travel agent is done not have in get actually pecuniary loss.
Beijing court of the first intermediate people thinks:
Appellant about " do not have on the contract other the circumstance such as the full name of 5 people cannot become effective " view, lack legal basis. Normally the circumstance falls, signing domestic travel to serve a contract on behalf of other by a person is completely normal. When the contract is signed, attend travel one party to make clear a number can, specific full name of the tourist, after can be in, make clear further, the number that travel agent provides according to the other side can fulfil the obligation that books airline ticket and hotel guest room namely. In this case, party already signed on the contract, and on the spot pay became full the total cost of 6 people, should hold a contract already become effective.
Appellant about " claimed the termination of a contract on April 24, but the other side did not take step in time, bring about losing generation and expand " view, travel agent removes in both sides controversy of the existence on the specific consequence of the contract, the other side falls without the circumstance of specific authorization again, did not make over the airline ticket that appellant books and room to other, do not have undeserved. One party party puts forward to remove when the contract, the other side of demand having right takes logical step, reduce the loss that because of removing contract place causes as far as possible, but have no right to be in did not negotiate consistent circumstance to fall with the other side, namely one-sided removes forcibly contract, ask the other side is assumed remove the total loss of the contract. In this case, appellant puts forward to remove contract and requirement refund are understandable, demur of Yi Youquan of Dan Zhongjia travel agent. Did not reach in both sides when agreeing, still should continue to fulfil the right that contract place provides and obligation, a when breach of contract agrees, the agree carries the responsibility of contract beak a contract. Appellant was opposite in both sides whether to remove when the contract reachs unanimous opinion, reject to suggest to just reducing losing, insist to ask the other side is assumed remove the contract is total loss, abandon fulfilling a contract, cause damage result happening, reason agree carries total liability.
Typical meaning
One party party puts forward to remove after the contract, in did not negotiate consistent circumstance to fall with the other side, refus just puts forward to reduce its losing to suggest absolutely, insist to ask the other side is assumed remove the total loss of the contract, abandon fulfilling a contract, cause self interest to be damaged, should conceited and total liability.
Relevant law sets
" contract law of People's Republic of China "
