Research On The Contract Rescission By The Breaching Party

Contract is an agreement for the establishment,alteration and termination of civil rights and obligations among natural persons,legal persons and other organizations.Once the contract is signed and taken effect it is legally binding on both parties.Termination of contract refers to a behavior that a contract relationship will be eliminated from the beginning or eliminated to the future due to the intention of one party or both parties,when the contract is effectively established and has the condition of elimination.According to the traditional theory of contract law,in order to protect the observant party's rights and maintain the stability and sanctity of the contract,the breaching party cannot remove the contract actively,but only the other party has the right to relieve the contract.In practice,many of the breaching parties fail to fulfill the contract due to the changes of subjective or objective conditions.They propose to no longer to perform or terminate the contract,want to quickly remove disputed and get rid of the bondage of the contract.However,the non-breaching party insists on continuing to perform,which leads to the indefinite relationship between contractual rights and obligations,not only enlarging the unnecessary losses,but also wasting a lot of social resources.More and more breaching parties relieve the contract through judicial channels,and finally also get support from the court.This is quite different from China's current contract law and theoretical realm about the mainstream view that the breaching party cannot remove the contract actively.Therefore,the author believes that it is necessary to deeply analyze the issue of terminating contract by the breaching party.The article is mainly written by five parts.The first part mainly studies the juridical status quo of the cancellation of the contract by the breaching party.Firstly,through empirical research,a large number of cases collected were screened,and statistical analysis is then conducted on the related judicial cases in which the breaching party terminated the contract.Secondly,it summarizes the reasons for the court to support the defaulting party to dissolve the contract and analyze its necessity.The second part mainly studies the relevant foreign theory about the cancellation of the contract by the breaching party.Firstly,introduce and comment on the theory of efficiency breach of contract.Secondly,the relevant provisions on the rescission of the contract by the common law system countries are summarized and commented.Thirdly,it expounds the practice of the civil law countries in the legislation and judicial practice of the cancellation ofthe contract by the breach of contract.The third part mainly discusses the justification of the cancellation of the contract by the breaching party in accordance with the theory of the cancellation of the contract,the theory of efficiency breach,the principle of fairness,the intrinsic property of the contract and the general practice of the judicial practice in China.The fourth part mainly discusses the feasibility of breaking the contract by the breaching party under the framework of the current legal system in China.Firstly,our country's law does not expressly prohibit the breach of contract by the breaching party.Secondly,according to the space reserved under Article 94,107,and 110 of the “Contract Law”,it is practically feasible for the breaching party to terminate the contract.Last part explores the conditions,methods,and legal effects of breach of contract by the breaching party.Firstly,on the condition that the breaching party rescinds the contract,it should meet the three conditions for avoiding harm-type breach of contract,continuing to fulfill obstacles,and fully compensating the observing party.Secondly,in the way that the breaching party rescinds the contract,it should be exercised through access to justice.Thirdly,in terms of legal effects,the cancellation of the contract by the breaching party results in the legal effects of the elimination of the rights and obligations of the parties and compensation for damages.