Empirical Study On The Contract Rescission Right Of The Breaching Party

For a long time,when the contract is legally terminated,the right to terminate the contract is owned by the observant party,and the breaching party does not have the right to terminate the contract.This is not only the mainstream view of the academic circle in China,but also the consensus view of the vast majority of courts in China in dealing with the cases where the breaching party requests to terminate the contract.However,with the publication of the case Xinyu company v.fengyumei shop sales contract dispute in the bulletin of the Supreme People's court in 2006,the academic community began to re-examine whether it can give the defaulting party the right to terminate the contract,so that it can terminate the contract under certain circumstances,in order to get rid of the shackles of the contract.At the same time,in the judicial practice,when the court faces the request of the defaulting party to terminate the contract,its attitude gradually looses,and a large number of judgments supporting the request of the defaulting party to terminate the contract begin to appear.However,Articles 94 and 110 of the contract law,which are the main basis for the court to support the breaching party to terminate the contract,do not clearly stipulate that the right to terminate the contract can be exercised by the breaching party,and its right to terminate the contract as the breaching party is lack of legitimacy,so the breaching party should solve the embarrassing situation that the contract case can not be relied on in the process of application of law.However,this situation changed with the issuance of the minutes of the national court's civil and commercial trial work meeting(hereinafter referred to as the minutes)on November 14,2019 and the publication of the civil code(Draft)at the end of 2019.Both Article 48 of the minutes of meeting and article 353 of the civil code(Draft)have made specific provisions on whether the breaching party has the right to terminate the contract,and recognized that the breaching party has the right to terminate the contract in exceptional circumstances,which can be used as the right standard of the breaching party's right to terminate the contract.However,there is a big conflict between them in restricting the right to terminate the contract of the breaching party.In addition,they have not made specific provisions on how to fill the loss of the observant party after the termination of the contract.There are big problems in how to coordinate and apply these two rights and norms in the trial of specific cases and how to maintain the legitimate rights and interests of the observant party.In this context,the author thinks it is necessary to discuss how to realizethe right to terminate the contract of the breaching party.The first part of this paper introduces the background of the research,the purpose and significance of the research,the current situation of the research on whether the breaching party has the right to terminate the contract at home and abroad,and the main research content of this paper.The second part introduces the practical response in the absence of the standard of the right to rescind the contract.On the one hand,the article 94 and Article 110 of the contract law,which may regulate the right of the breaching party to terminate the contract,and the interpretation of the Supreme People's Court on Several Issues concerning the application of the contract law of the people's Republic of China,on the other hand,Article 26 does not clearly stipulate that the breaching party has the right to terminate the contract,and the theory has different opinions on whether the three provisions give the breaching party the right to terminate the contract On the other hand,through empirical analysis to explore the current situation of the court in the judicial practice of our country in the case of lack of rights norms.The third part describes the current two kinds of normative logic of the right to terminate the contract of the breaching party,namely,the provisions of Article 48 of the minutes of meeting and article 353 of the civil code(Draft).Both of them make it clear that the breaching party has the right to request the court to terminate the contract,but they have conflicts in terms of the conditions for the breaching party to terminate the contract? Based on the empirical analysis and demonstration,the author finds that the provisions of the civil code(Draft)on the termination of the contract by the defaulting party are more in line with the requirements of the logical thinking and social practice development of the judge in dealing with the case of the defaulting party's request for termination of the contract in judicial practice.The fourth part mainly expounds how to improve the provisions of the civil code(Draft)on the right to terminate the contract of the breaching party.It is questionable about the terms "abuse of rights" and "obvious unfairness" in the provisions of the civil code(Draft),the lack of restrictions on the subjective state of the breaching party and the failure to make provisions on how to compensate the loss of the observant party,so as to make it more suitable for the development of judicial practice Exhibition.Finally,in the conclusion part,the core arguments of this paper are briefly stated.