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The Legislation Research On Breach Of Contract Rescission

Posted on:2019-08-21Degree:MasterType:Thesis
Country:ChinaCandidate:J M WangFull Text:PDF
GTID:2416330542482999Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The theory of traditional contract law does not support the right of the breaching party to rescind the contract in order to comply with the principle of strict adherence to the contract and to give the breaching party a negative evaluation to protect the interests of the observant party.Under the influence of the theory,the current contract law of our country also excludes the rights of the breaching party in the design of the contract dissolution rules(Articles 93 and 94 of the Contract Law).However,in Xinyu Company vs.Feng Yumei's dispute over the sale and purchase contract,the court believed that in the exceptional circumstances of the case,the breaching party Xinyu Company had the right to claim cancellation of the contract,and finally decided to terminate the contract.This case undoubtedly has an impact on the theory and the current law,so it has caused extensive discussion among scholars and practitioners.Therefore,it is particularly important to study the right of the breaching party to terminate the contract.This article studies the rights of the breaching party to terminate the contract by analyzing both the judicial practice and theoretical theories.In the empirical part we conducted a big data analysis on 90 real cases and found the followings: first,if the value of the object is high,the dispute will be large and the retrial rate will be high.Second,most defaulting parties consider that they have the right to terminate the contract.Third,most courts support the claim of the defaulting party.Fourthly,the courts that support the defaulting party often use the Article 110 of the Contract Law as the legal basis,and often believe that “absence of legal prohibition means freedom”?“respect for antonomy”?“consider the relationship between performance costs and benefits”?“compensation can protect the interests of the observant party”are justified.Through the theoretical analysis,we believe that the right of the breaching party to terminate the contract should be qualified as the right to claim.Besides,due to the limitations of the current legislation,it is necessary to establish a system for the cancellation of breach of contract.This legal system has the following legislation significance:first,the loss of the observant party is compensated and the defaulting party pursues greater profits by rescinding the contract.Second,it maintains the freedom of the breaching party.Third,the two parties are equal in status and avoid the moral hazard of the observing party.Fourth,we have built a safe order and maintained a safe economic environment and human relationships.However,the right to terminate the contract of the breaching party cannot be applied as a general rule,and necessary restrictions must be set when building the system.Through the theoretical and empirical analysis,I believe the following four conditions must be considered when allowing a breaching party to exercise its right to request for cancellation:(1)The costs of implementation are excessively high;(2)There is no subjective malice on the part of the breaching party;(3)Compensation is sufficient to protect The interests of the parties;(4)Disputes need to be judged by the court.
Keywords/Search Tags:Defauiting Party, Rescission of Contract, Legislative Significance
PDF Full Text Request
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