Study On The Rescission Right Of Contractof The Breaching Party

Whether the breaching party can claim rescission of the contract is controversial in theory and practice.Based on the particularity of the breaching party's claim rescission of the contract,the legal basis for affirming that is also divided.In the case of the exclusion of the specific performance,if the non-breaching party neither appeals for rescission of the contract nor requests for specific performance,the contract will easily fall into a rigid state.The existing legal remedies tend to take measures on the initiative of the non-breaching party and allow the party who breaches the contract to claim the rescission of the contract,which has certain practical significance.Specifically speaking,there are differences between specific performance and contract rescission,and their core functions are different.The rescission of contract does not belong to the liability for breach of contract.It not only has the function of sanction,but also should be neutral.At the same,the party in breach of contract does not violate the basic value of contract law,which embodies the value pursuit of the principle of substantive freedom,fairness and good faith of contract.Besides,it also embodies the principle of efficiency.Efficiency,as an objective research tool of law and economics,provides a new interpretation method for the application of law.Based on this theory,the efficiency breach of contract provides another perspective for contract research-social wealth maximization.Among them,the derogative efficiency breach of contract is not only recognized by national laws and international treaties,but also embodied in Article 110 of the Contract Law.Moreover,the breaching party shall not be treated as the non-breaching party.In order to balance the interests of all parties and reduce opportunistic breach of contract,the breaching party's claim rescission of the contract should be restricted.For one thing,the breaching party should rescind the contract by judicial rescission,and give full play to the neutral status and discretion of the court or arbitration institution in such cases.For another,the substantive conditions for the breaching party to rescind the contract should be limited,and the basic criteria for the restrictive conditions are objective and external.The subject matter of the contract is not required to be non-specific.It should be supported in the case of satisfying the derogative breach of contract,excluding the specific performance,or failing to realize the purpose of thecontract.The application of rescission of a contract by the breaching party can generally take two ways-legal interpretation and legislation.In the former,article 94 and article 110 of the Contract Law in the narrow sense of construction of law can't form the legitimacy path for the breaching party to rescind the contract,It is advisable to fill the legal loopholes by choosing the principle of fairness in Article 5 and the principle of good faith in Article 6 of the Contract Law.For the latter,if we draw lessons from the construction of obstacles to performance,the contract can be terminated automatically under special circumstances,the solution of the problem has not become clearer,and the granting of the breaching party's right to rescind is more direct.Returning the issue of the right of rescission,Article 94 directly stipulates that the breaching party has the right of rescission of contract under specific circumstances.