The Theoretical And Practical Criteria For Determining The Statutory Discharge Of The Contract

Based on the legal right to terminate the contract as the research object, respectively, pointed out that the contract is terminated the legal controversy in the study of system theory, at the same time to pay attention to the details of the comb by judicial cases, found that exist between the different focus.For a legal right to terminate the contract, the reason of the termination right level is an important theoretical problem. Firstly embodies in to the applicable contract type problem, this paper argues that the legal rescission is mainly suitable for the bilateral contract, the creditor’s rights, one-time, unilateral contract don’t have the necessary institutional guarantee, the real right contract need not discussed in China mainland, and continue to contract, in fact, there is certainly in the law the legal right to terminate. Specific in statutory basis, actually including the objective reasons such as force majeure legal rescission, and termination of the contract, as a result of breach. Default in the lift, and include the determination of reasonable time, lift the possibility of collateral obligation, etc. This article focuses on the controversy over the legal reason to terminate, how to explore the theory is that the ultimate of breach of contract.In practice, a breach of contract to lift the referee standard has the following laws: personal attributes to become "aim" contract cannot achieve a standard; Of the two sides agreed to lift cannot cover up legal termination reason; Contract legal exercising termination right must go through their claims; The default party’s behavior also need to consider in the established legal rescission; Is the contract cannot claim rescission, etc. System of judicial practice for more detail, the doctrine of contention is not reflected in the practice of ruling, is applicable for the legal right to terminate in the judicial practice, clearly more cautious. The judicial practice of the effectiveness of the court ruling whether has the right to terminate the contract, the question of whether people can Sue termination right also very concerned about. Contract rescission of the kill for the scope of practical grasp the theoretical differences.Through the above to the termination of the contract system of theory and practice of double inspection, found that the system of judicial practice in more detail, the doctrine of debate not reflected in the practice of ruling, the judicial practice for the application of the legal right to terminate more cautious, etc.