Whether The Defaulting Party Could Exercise The Right Of Cancellation When Contract Cannot Perform?

The right to rescission a contract belongs to the forming right and can be exercised in accordance with the unilateral meaning of the right holder.However,the exercise of the right to terminate the contract also means that the purpose of the contract is lost,and the interests of the parties cannot be realized.Therefore,the traditional view is that only the observant party can exercise the right to cancel the contract.However,since the case of the Supreme People's Court "Feng Yumei Case",more and more judicial referees have begun to affirm the right of rescission of the defaulting party.In the legislative discussion of the Civil Code,The issue of the right of rescission of the defaulting party was widely discussed in the formulation of the contract code of the Civil Code.In the end,the third paragraph of Article 353 of the Civil Code Contract Draft gave the defaulting party the right to apply for the termination of the contract.It also triggered an uproar in the academic world.This paper combines the recent judicial judgments and doctrines and the relevant content of the legislative discussions in the civil code contract,and analyzes and demonstrates whether the defaulting party can exercise the right to terminate the contract.The first part raises the question,pointing out the judicial judgment's recognition of the defaulting power of the defaulting party and the legislation of the civil code contracting legislation to respond to the above questions.The second part explores the status of several payments in the ineffective mode.China has not adopted the mode of eliminating the original payment obligation when the payment is not possible,nor has it reasonably explained the effect of the debt that was originally paid after the payment cannot be made.The payment cannot only be used to exclude the creditor's mandatory performance,and the contract parties are still trapped in the original The restraint of the payment obligation relies on the release to liberate the rights and obligations of both parties to the contract.Therefore,when the creditor(the observant party)does not exercise the right of rescission and continues to request the original payment,the judicial practice and the theoretical circles of our country are lost.The third part analyzes the positioning and function of the contract cancellation right.The legal right of rescission belongs to the right of formation,but its legitimacy as the right to form needs to be repositioned;the function of the statutory right of rescission is to relieve the punishment and lightly punish,the core is that the party to the contract is liberated when the purpose of the contract is not reached.The fourth part sorts out the doctrine of the doctrine and the referee's thinking about the issue of the right of the defaulting party.From the positive and negative aspects,the existing doctrines and referees are given the views on the issue of the right of rescission of the defaulting party.The fifth part demonstrates the legitimacy of the defaulting power of the defaulting party.This paper examines the limitations of the international legislation on the exercise of the right to terminate the contract,and explains that there is no room for interpretation of the right of the breaching party in the domestic law.At the same time,it can be demonstrated from the fact that no one can profit from the wrong behavior and the right to form the right to cancel.The defaulting party's right to revoke the right is not valid,and it rejects the idea of using the "efficiency default"theory to explain the defaulting power of the defaulting party.The sixth part discusses how the payment cannot be made by the creditor to continue to request th e performance of the original payment.A new response is needed when the payment cannot be made by the creditor to continue to request the performance of the original debt.It is necessary to introduce the interpretation framework of the transformation theory.If the creditor fails to pay,the performance of the claim is eliminated and transformed into the claim for damages.The content of the contract debt is changed,and the debt from the original payment is transformed into the debt for damages.Solve the problem of the effectiveness of the originally paid debt.The existence of the derogation rule can effectively avoid the expansion of the loss after the breach of contract.At the same time,the derogation rule may have a"crowding mechanism",that is,when the observant party finds that he maintains the status quo and prevents the burden of damage from expanding,he will take the initiative.The contract was terminated,so that they would no longer bear the burden of mitigating losses,and the trouble of "contract deadlock" would no longer exist.The existence of the exclusion period and the rights loss system will prompt the observant party to exercise the right of rescission in a timely manner.When the observant party does not exercise the right of rescission during the reprimand period or causes the counterpart to generate trust that it is unwilling to exercise the right of rescission,the observance The party can no longer exercise the right of rescission,which will urge the observant party to exercise the right of rescission in a timely manner and break the"contract deadlock".