A Study On The Termination Of Contract By The Defaulting Party

The contract termination system is an important way to terminate the contractual rights and obligations,and it is also an important part of the Contract Law of our country.With the development of social life,there is conflict between keeping contract and autonomy,economic life has gradually appeared a special situation:the contract is impossible to perform,the purpose of fulfilling the contract cannot be achieved,however,the observant party does not wish to terminate the contract,the contract thus stalemates for a long time.According to the traditional theory,only the observant party has the right to terminate the contract,but with the emergence of cases like Feng Yumei,some scholars believe that the default party should be given the right to terminate the contract under certain circumstances.Therefore,it is necessary to explore the legitimacy and bounds of the termination right of default party under the exclusion of right to claim of performance.Peng Jiahuang and Peng Chen v Li Bao Company is used as an example in the first part of the dissertation to illustrate that the fuzzy expression "the parties" of Article 94 in the Contract Law makes the interpretation right of the default party have the space to be discussed.In the second part of this dissertation,cases that the default party has the right to terminate will be sorted out,and the cases of positive theory and negative theory in practice will be analyzed and discussed,moreover,relevant issues will be raised.The third part elaborates the theoretical disputation of whether the default party has the right to terminate.From the traditional theory to the efficient default,until now,the discussion on the relationship between article 110 and article 94 of the Contract Law,and whether the default party has the right to terminate has been researched deeply by the academic circle.The fourth part of the dissertation is the proof of the termination right of the default party under the exclusion of right to claim of performance.After the criticism of reasons to deny the termination right of the default party,the author will discuss respectively about four main explanation path that support the termination right of the default party(derogation rules,rights should not be abused,the purpose of the contract cannot be achieved,theory of interest imbalance).And the theory of interest imbalance not only accords with the purpose of the termination system,but also shows the unbalanced situation of the contract deadlock,and further explains the necessity of granting the right to the default party.Thus,it is most appropriate to explain why it is necessary for the default party to have the termination right.The fifth part expounds that there are still many restrictions on the granting of the termination right to the default party under the exclusion of right to claim of performance,that is,the default party has no fault,the observant party is fully compensated and the purpose of the contract cannot be realized.For the protection of the interests of the observant party,only when the foregoing conditions are fully fitted,the default party can terminate the contract.The last part is the conclusion,which simply summarizes all the arguments in this dissertation.