摘要/Abstract

合同法410条规定了委托合同的任意解除权，任意解除权的法理基础在于其人身信任关系，但随着信任内涵向资本信任的转变，委托合同任意解除权的适用也应当有所限制。尤其是以特别约定的方式限制或排除任意解除权的情形在实践中频繁出现，对于该特约的效力在理论界与实务界都存有争议。结合整理的10个特约限制委托合同任意解除权的判例来分析委托合同类型、特约的方式、诚实信用原则等影响特约效力的因素。在此基础上，通过对比较法上特约效力的借鉴以及立法理论基础的思考，提出增加“有偿委托合同或当事人另有约定的除外”的具体进路来明确特约的

Article 410 of the Contract Law of the People’s Republic of China provides the discretionary right to terminate a commission contract. The legal basis to terminate commission contract is based upon the mutual trust of its parities. But with the transition from the mutual trust to capital trust, the discretionary right to terminate a commission contract should be limited. We need focus on the legal effect of the special agreement that act on limit or exclude this right, which argued by both theoretical and practical circles. Through the analysis of ten special cases about the discretionary right to terminate the commission contract by special agreement, we can see that some factors influence its legal effect, such as the type of the commission contract, the way of the special agreement, the principles of good faith. And then we can draw lessons from the comparative law and thinking of theoretical basis of legislation. Finally, we could add 'except the compensation contract or otherwise agreed by the parties' to the Article 410 of the Contract Law to clarify the legal effect of the special agreement.