Research On The Right To Rescind The Contract Of The Defaulting Party

As the basic dust of the Civil Code(Draft)is settled,whether the breaching party enjoys the right to terminate the contract or not has attracted widespread attention.In the first and second review of the "Civil Code Contract(Draft Draft)"(hereinafter referred to as the "Draft"),it has been clarified that the breaching party can exercise the right to terminate the contract to a ce rtain extent,thereby solving the problem of "contract deadlock" in practice.The "Minute s of the Civil and Commercial Trial Work Conference of the National Court"(hereinafter referred to as the "Nine Minutes Minutes"),which was subsequently issued,was basically consistent with the draft of the previous two trials.As this measure involved major changes in the field of the "Contract Law",it triggered a After much controversy,the provision was eventually deleted in the third review of the Civil Code(Draft).The traditional mainstream view is that the spirit of contract should be strictly observed,and only the contract-keeping party can exercise the right to terminate the contract.However,with the development of the social economy,the judicial practice has discovered that after excluding statutory factors such as force majeure and change of circumstances,there are still special circumstances such as the failure to perform the contract and the failure to achieve the purpose of the contract.As the breaching party has no right to terminate the contract,it is easy to form a "contract deadlock" and cause great waste of social resources.This article takes efficiency breach theory as a research entry point,and combined with the analysis method of law and economics,finds the theoretical support for the breaching party to exercise the contract cancellation right.By analyzing and comparing the relevant laws and their application at home and abroad,the rationality and feasibility of the breaching party 's right to terminate the contract are explained.In China's judicial practice,since the "Xinyu Company v.Feng Yumei Retail Sales Contract Dispute Case" promulgated by the Supreme People's Court,the courts at all levels have followed suit,but there are also many cases where the same case is different The main reason for the phenomenon of "judgment" is that the existing laws and regulations are not clear enough to solve the problem.In order to respond to the actual needs,it is necessary to discuss the path for the breaching party to exercise the right to terminate the contract from the perspective of legislation and legal interpretation.As far as the legislative theory is concerned,it is recommended that the breaching party should be given the right to cancel the contract;of course,based on practical considerations,the post-civil code era should be based on explanatory theory to make up for the deficiencies of the Civil Code.