On The Right To Cancel The Contract Of The Defaulting Party

In the course of my internship,I found that there was no clear legal provisions could be quoted to terminate the contract when the breaching party encountered certain special circumstances.And academic circles generally believe that when a party breaches the contract,the law should increasingly protect the interests of the observing party.Later,in the related cases,it was learned that the defaulting party proposed cancelling the contract to avoid a greater loss of continued performance.The author has great interest in this issue and made the following discussion:The first chapter of this paper is mainly the introduction chapter,to introduce the research background,purpose,significance and research methods of the dissertation.The main part of this paper is mainly from the second chapter.The second chapter of this paper is mainly about the scoping of a topic.Through the summarization of the three concepts of“contract breach,” “right to cancel contract,and the right to cancel a breaching party,” the scope of this topic will be clarified step by step.The third chapter of this paper is mainly composed of two parts: First,the necessity of the right to terminate the contract by the defaulting party;Second,the right of the defaulting party to enjoy the right to terminate the contract.In view of current judicial practice,judges have different views on the exercise of the right to terminate the Article 94 of the “Contract Law”.At the same time,Article 110 of the “Contract Law” cannot be used as the basis for the termination of the contract by the defaulting party,and the actual performance system has defects.These make it necessary to build a system in which the breaching party enjoys the right to terminate the contract.And this paper also analyzes the legitimacy of the right to terminate the contract by the defaulting party through the perspective of the utility value,freedom and justice value of the contract.After the necessity and legitimacy analysis,it is necessary to understand how to deal with this issue under other legal systems.The fourth chapter of this paper is to demonstrate the proposition in the perspective of extraterritorial law.By introducing the principle of strict adherence to contracts under the civil law system,we will focus on introducing Germany and France’s gradual liberalization of the principle of strict adherence to the contract in the legislative and judicial practice,and analyzing the background of this liberalization and the transformation of related concepts behind it.In addition,through the analysis of efficiency default system(its concept,theoretical basis and theoretical value)under the Anglo-American law system,combined with the reality of our country,this paper proposes that the efficiency default theory can be selectively applied in China.The last chapter of the article is mainly to propose some feasible suggestions for this topic,including: clearly specifying the exercise of the right to disarm the right,strictly limiting the conditions and the ways to exercise the cancellation right,explicitly defining the compensation after the dismissal in the judicial interpretation or legislative interpretation.These will make it more feasible for the breaching party to enjoy the right to terminate the contract.