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Research On The Issue Related To The Termination Of The Contract By The Breaching Party

Posted on:2021-01-10Degree:MasterType:Thesis
Country:ChinaCandidate:L Q LiFull Text:PDF
Abstract/Summary:PDF Full Text Request
When the situation stipulated in Article 110 of the Contract Law occurs,the debtor can accordingly fight against the creditor's right of continue to perform the request.At this time,the contract continues to exist but cannot be performed,resulting in contract deadlock.There is no way to cope with contract deadlocks in the existing regulations,and the system of terminating contract by breaching party can effectively deal with the issue.This article starts with typical cases,and grasps the attitude of the practical community in case analysis,then compares several existing approaches to deal with contract deadlocks.Finally,based on a comprehensive analysis,this article combines the latest legislative developments and makes recommendations on the institution of terminating contract by breaching party.In addition to the foreword and conclusion,the full text includes five chapters:The first chapter is the proposal and definition of the issue.First,a typical case leads to the central issue that the breaching party clams to terminate the contract.In judicial practice,the adjudication view that allows the breaching party to terminate the contract challenges the traditional theory that the legal right to terminate the contract can only be enjoyed by non-defaulting parties.Secondly,the thesis is limited,and only the question of rescission of the contract by the defaulting party in the case of contract deadlock is discussed.The second chapter makes an empirical analysis of the breach of contract case.Through the collation and analysis of adjudication documents,it is possible to more accurately grasp the court's adjudication path and the attitude of the practitioners.It can also provide practical support for the theoretical research later.This article selects 40 judgement documents and analyzes them from five aspects:the cause of action distribution,litigation status,judgement result,legal basis and judgement reasons.The third chapter introduces the different ways to resolve the contract deadlock in detail.Existing regulations cannot solve the problem of contract deadlock.Contract deadlock does not constitute a change of circumstances,and derogation rules do not have the opportunity and value to apply.Only the termination of the contract can completely eliminate the stalemate.Although the path of giving the breaching party the right to terminate the contract can also achieve the purpose of ending the contract deadlock and liberating the parties,there are theoretical defects in the source of rights.The way that the defaulting party applies to terminate the contract can break the deadlock of the contract,and it has obvious advantages compared with directly giving the defaulting party the right to cancel.The fourth chapter demonstrates the justification and feasibility of the breaching party's application for termination of the contract.The breach party's application for termination of the contract is justified,it conforms to the principles of fairness and good faith,reflects the pursuit of efficiency value in the contract law,and is consistent with the purpose and function of the contract termination system.In addition,the design of the system by which the breaching party applies to terminate the contract has a certain legal and practical basis,and this path is realistic and feasible.The fifth chapter is the system assumption of defaulting party applying for the termination of the contract.This part clarifies the conditions and consequences of the breach party's application for termination of the contract.The defaulting party's termination of the contract is conditional:There are conditions for the breaching party to terminate the contract:it is not a malicious breach subjectively,it is obviously unfair for the breaching party to continue to perform the contract objectively and the observing party's refusal to rescind the contract violates the principle of good faith,the procedure requires the defaulting party submit a request to the court or arbitration agency to terminate the contract.Only when the above conditions are met at the same time can the defaulting party be permitted to terminate the contract.When the contract is terminated,the court shall explain the relevant circumstances to the parties,and deal with the legal consequences after the contract is terminated in order to settle the dispute as once as possible.When the contract is terminated,special attention must be paid to the protection of the interests of the observing party,and the principle of full compensation must be adhered to when confirming the scope of compensation for losses.
Keywords/Search Tags:Contract deadlock, Good faith, Contract termination, Damages for breach of contract
PDF Full Text Request
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