A Empirical Study On The Rescission Of Contract By The Defaulting Party

The traditional theory of contract law claims that the rescission right of contract only belongs to the observant party.However,the Supreme People's Court published a case in the 6 issue of 2006--"Xin Yu Co.v.Feng Yumei" In this case,the court supported the defaulting party's claim of terminating the contract which is a challenge to the traditional theory.In recent years,there have been more and more cases in which the defaulting party has advocated the rescission of the contract,and there has been a great difference in the legitimate basis and the judgement.According to my investigation,the case of the defaulter's right to terminate the contract was also one of the difficult cases of the Jiangsu Provincial High People's Court.This paper takes the searched 81 cases of defaulters claiming the right to terminate the contract as an analysis sample.After the study,I find that the judicial practice gradually relaxes attitude towards the right of the defaulter to terminate the contract,and more than half of the referee cases support the defaulter to terminate the contract.However,in 19 judgments,the court held that the right to terminate the contract was enjoyed by the contractor unilaterally,and the defaulting party did not have the right to terminate the contract.This shows that,whether the defaulter has the right to terminate the contract is still a major controversy in judicial practice,and it must be clearly identified from the source.In my opinion,our country's law does not explicitly prohibit the offender from enjoying the right to rescind the contract,and the traditional contract law theory that the rescission right of contract only belongs to the observant party can not satisfy the needs of today's judicial practice and social development.I demonstrate the legitimacy and rationality of the defaulter's right to terminate the contract from the perspective of legal theory such as the rescission of contract theory,theory of efficient breach,legal interpretation theory and fairness justice theory.The defaulter enjoys the right to terminate the contract,but the exercise of the right should be subject to strict restrictions.After further studying the case,I find that the judging scales for the defaulter's rescission of the contract in the judicial decision are not the same,such as different judgments in the same case,the confusion about application of law and so on.This paper believes that the defaulter's right to terminate the contract is not a universal right,and its exercise must satisfy specific entity conditions and procedural conditions.The entity conditions are based on the satisfaction of Article 110 of the "Contract Law".The most important of these is the issue of "higher cost of performance".At the same time,the subjective mentality of the breaching party should be recognized.In addition,we should pay special attention to the protection of the rights of the observant.In the procedural conditions,according to the reasons for the breach of the contract by the breaching party,the nature of the right of the rescission of contract by the defaulting party is gestaltungsrecht.Therefore,the exercise of this right should be in the form of lawsuits.The court shall comprehensively consider factors such as the possibility of continuing to perform,the purpose of the contract,the balance of interests between the two parties,damage compensation,social costs and other factors in the judicial decision.Only in this way,can we realize the organic unity of personal interests and social benefits,order values and efficiency values,and form justice and substantive justice.