Research On Delinquent Party's Rescission Right Of Contract

Article 94 of the Contract Law of our country stipulates the parties' legal right of rescission,but the law does not clearly define whether the scope of "parties" includes the breaching party.Traditionally,it is believed that only the breaching party has the right to terminate the contract,but in practice,there will be such a situation: the breaching party does not intentionally breach the contract,but the purpose of the contract can not be achieved in the current environment,or the objective situation changes,resulting in the breaching party's performance costs far higher than the performance interests,or even higher than the sum of the two parties' performance interests,but the breaching party insists on continuing.The contract is in a deadlock when it is fulfilled.In practice,the courts have different judgments in these similar cases,either supporting the breaching party to terminate the contract or supporting the compliance party to continue to perform.Therefore,it is necessary to analyze and study the necessity,feasibility and legitimacy of rescission of contract by the breaching party under special circumstances in order to unify the application of law.The first part of this article first lists relevant judicial cases,including supporting the breaching party to terminate the contract and opposing the breaching party to terminate the contract.On the basis of the analysis of the case,this paper summarizes the similarities and differences in the judgment results and reasons,finds out the behavior of the breaching party in rescission of the contract in the existing cases,and raises questions from the similarities and differences,so as to facilitate the corresponding discussion below.The second part focuses on the current situation of the breach of contract rescission difficulties,starting from the current mainstream domestic point of view,analysis of the principle of the contract,the nature of the liability for breach of contract and other reasons,the breach of contract does not enjoy the legal right to rescind.At the same time,from the perspective of comparative law,this paper explores the system of contract rescission in other countries,proving that there is no state expressly stipulating the content of the rescission right of the breaching party.The third part,from the perspective of the necessity,feasibility and legitimacy of rescission of the contract by the breaching party,gradually proves the right of rescission of the contract by the breaching party.Firstly,because the law cited in the court judgment can not be well applied in rescission of the contract by the breaching party,and there are some defects in the current system of liability for breach of contract,it is necessary for the breaching party to rescind the contract.Secondly,from the Xinyu Company case,there are more and more cases supporting the breaching party to terminate the contract,and the domestic legal environment is also tolerant.With the successful application of the theory of efficient breach of contract in foreign countries,it is feasible for China to endow the breaching party with the right to terminate the contract by using its rationality for reference.Finally,by refuting the relevant content in the second part and discussing the legal value,the right to rescind the contract of the breaching party is given legitimacy.The fourth part tries to summarize the substantive and procedural conditions for the breaching party to exercise its right on the basis of recognizing that the breaching party can be granted the right to terminate the contract under specific circumstances,so as to resolve the contract deadlock and get the breaching party out of the current unfavorable state on the basis of fully compensating the interests of the breaching party,and at the same time to achieve the optimal allocation of social resources and the stability of the market trading order.