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Breach Contracting Party's Right To Discharge Contracts

Posted on:2019-12-05Degree:MasterType:Thesis
Country:ChinaCandidate:H Y ZhuFull Text:PDF
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The right to rescind the contract is the right enjoyed by the parties to the contract,which is stipulated by law or agreed upon in the contract.Thearticle 93 and article 94 of the contract law of China stipulate the right to rescind the contract,which are the direct legal basis for the parties to exercise the right to rescind the contract.Because the two rights subject to the termination of the contract are defined as the "parties" of the contract,when the termination of the contract is connected with the contract breach,the legal interpretation needs to answer such a question:Does the subject of the right to cancel the contract include the party in breach of contract?Generally speaking,according to the contract justice and honesty and credibility,the breaching party should be reproached and bear adverse consequences because of breach of contract,so it is not entitled to rescind the contract.This is the traditional point of view and the mainstream view of the law circle of contract.However,in the increasingly complex economic activities and social life,there are many major changes that can not be foreseen in the process of contracting.This leads to a non-malicious and passive party of contract by the party to become a breaching party to the contract.In this case,the continuation of the breaching party to perform the contract has no longer any real possibility,or will cause a very high price.If the other party required to continue to perform the contract,it will fall into a deadlock of neither cannot continue to perform the contract nor immediately terminate the contract.At this time,whether the "breaching party" is explained from the concept of "the parties" is key to the problem which allow the breach of contract to exercise the right to rescind the contract and break the deadlock.This paper specifically divided into the following four parts:The first part summarizes the basic cases by combing the six civil judgments of Xu Fuyun and Liang Wei,and summarizes the main points of dispute and the main points of court trial.It can be extracted from the judicial phenomenon,which is a valuable theoretical problem of the right to rescind the contract of the party.The second part studies the legitimacy of the rescission right of the contract for the breaching party.In legislation,the existing laws and regulations,mainly the provisions of the article 94 and article 110 of the contract law,provide the explanation space for the establishment of the contract breaking right of the breaching party.It is revealed that the rescission right of the breaching party is standardized.Theoretically,the legislative purpose and efficiency breach theory provide support for it.In the comparative law,both the civil law system and the common law system are concerned with the practice and theory of contract fulfillment and contract rescission.They all tend to deny the breach of contract's rescission right to conditional support for the defaulting party to have the right to rescind the contract.The third part studies the applicable boundary of the rescission right of the breach of contract.In terms of specific application conditions,the breach Party's right to rescind the contract must have three elements:the default party is not malicious,the contract object is non-specific and the performance cost is greater than the damage compensation.In terms of scope of application,the right of rescission is not applicable to all types of breach,but only applies to passive default and evades default.The fourth part studies the path of the realization of the right to rescind the contract of the party in our country.There are two ways of legal interpretation and legislation for the realization of the right to rescind the contract of the breach of contract.The path of legal interpretation can be further subdivided into the legal interpretation of the narrow sense and the remedy of the legal loopholes.Considering China's legal practice experience and realistic legislative conditions and legislative techniques,we should choose narrow legal interpretation path.
Keywords/Search Tags:breaching party, right to rescind the contract, efficient breach, Passive breach of contract, evades breach of contract
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