The Problem Of The Rescission Of Contract By The Defaulting Party

The mainstream view is that our country "contract law" the ninety-fourth stipulates that only observant party can cancel the contract,the breaching party does not enjoy the right to cancel the contract.In judicial practice,there are many cases of the breaching party defaults within the contract period and asks to cancel the contract.If we do not distinguish the breaching party's subjective motive and the specific situation,completely deny the breaching party's right to cancel the contract,may cause the result of case of injustice and waste of resources,cause the imbalance between the interests of the parties to a contract,deviated from the principles of fairness,honesty and credit.Writing this thesis is due to a case in judicial practice,it triggered thinking about the problem of the breaching party to cancel the contract.Thesis on the content structure is divided into five chapter,The first chapter is combing the current laws about the right to cancel the contract,mainly introduces the provisions of the current law especially in "contract law" about canceling the contract.The second chapter demonstrates the legitimacy of giving the breaching party right to cancel the contract from five angles including the intrinsic value of the contract,the principle of good faith,the limitations of actual performance,legal interpretation,the judicial practice.From the perspective of the intrinsic value of the contract,giving the breaching party the right to cancel a contract is the embodiment of the contract freedom,justice and efficiency value.From the perspective of the principle of good faith,the breaching party exercises the right to cancel a contract in accordance with the connotation of the balance among the interests of all parties of the principle of good faith.From the perspective of the limitations of actual performance,as the bearing of the liability for breach of contract,actual performance has the performance of the high cost,difficult to perform and the defects of social efficiency loss.From the perspective of legal interpretation,although our country "contract law" is not clearly given the breaching party right to cancel a contract,but no clear provisions on the breaching party shall not cancel the contract,and the relevant provisions of the contract law provides the indirect suitable space for the breaching party cancels the contract.From the perspective of judicial practice,through the typical case dextrys Co.v.yu-mei feng shops business contract dispute case analysis,demonstrates the breaching party cancels the contract rights granted got a certain degree of recognition and enforcement in the judicial practice in our country.The third chapter focuses on defining the breaching party cancels the contract conditions,abide by the contract is the principle,canceling the contract is an exception,the civil law principle of good faith does not allow the parties get benefit by default,although the breaching party cancels the contract rights has legitimacy,but the breaching party cannot cancel the contract is the basic principle,so must be strictly restrict applicable conditions of the breaching party to cancel the contract,only in accordance with specific conditions of the subject matter of contract are kind,continue to perform the obstacle,the breaching party without fault,to give the breaching party right to cancel a contract.The fourth chapter discusses the way of the breaching party cancels the contract,the breaching party cancels the contract rights belong to the right of claim in nature,and apply to the specific conditions,in the case of there is no specific provision in the existing law,must be through to the court,only in this way can reflect to the breaching party to exercise strict limits the right to cancel the contract,is conducive to the impartiality of dispute and final processing.The fifth chapter discusses the defaulting party's liability for damages at the time of cancellation of the contract,Allow the breaching party terminate the contract under certain condition,the breaching party must undertake the breach of contract damages to the other party at the same time,fully compensate the observant party for his losses suffered by default.The breaching party should compensate all loss of the observant party,that is the principle of full compensation,but should be limited to the rules of certainty,predictability,reducing the loss and deducting the interests from the loss.