A Paper On The Right Of Terminating The Contract Pertain To The Delinquent Party

In previous contract law theory and judicial practice,in order to protect the rights and interests of the observant party and maintaining the stability of the contract,in any case,the default of one party cannot actively put forward to cancel the contract,and abide by the contract by the other party,one party fails to perform the contract rights can choose to ask each other continue to perform the contract or terminate the contract.But,with the rapid development of productive forces,social life is also increasingly heavy and complicated,sometimes,both sides cannot predict the contract performance change in the time of the conclusion of the contract,the contract party is not out of spite,but the situation changed really cannot continue to perform the contract.At this time,because of the law is not updated,which appeared the delinquent party asks to cancel the contract through lawsuit without legal basis in the judicial practice,and finally a contract can neither relieve cannot continue to perform of the zombie state.Fairness and justice is the first value pursuit of law,the law should not only protect rights and interests are not violated of only one side of the contract.Shanghai company and fan so-and-so business contract dispute case,due to the plaintiffs actual situation changes and he can not continue to perform the contract,then he go to Shanghai district people's court to lodge a civil lawsuit to asks to cancel the contract.But for Shanghai company is the delinquent party of the contract,the law has not stipulated that whether he can terminate the contract,the theory and practice have the different opinions,but in the end of the case,plaintiffs claims supported by a district court in Shanghai,this is a great and new breakthrough in the system of the contract termination.Based on the case,this paper want to deeply analyze whether the law should give the rights of delinquent party offered to rescind the contract and the delinquent party could enjoy the rights under what circumstances.This thesis is divided into four most section.The first part mainly introduces the theory of the delinquent party have the right of terminating the contract and the judicial status,through the case raises to think of the system of termination of the contract,then introduces Chinese existing theory of the termination of contract and foreign relevant theory separately.The second part is mainly analyze to the legislation necessity of the right of terminating the contract pertain to the delinquent party.Due to the high cost of continuing to perform the contract by delinquent party,the court judgment will also face difficulties to continue to perform the contract,the actual performance of the principle in the legislation also flaws,so the system of the right of terminating the contract pertain to the delinquent party need to legislate.The third part mainly analyzes the legislative value of giving the right of terminating the contract pertain to the delinquent party,the right is the embodiment of the principle of social justice,efficiency and autonomy.The last part of the paper do the legislative feasibility research of the right of terminating the contract pertain to the delinquent party,mainly including the delinquent party under what conditions can ask to terminate the contract and the legal consequences after termination of the contract.