Research On The Right Of Terminating The Contract Of The Defaulting Party

For a long time,the understanding of the contract cancellation system has excluded the prerequisites that laws such as “force majeure”,“change of circumstances”,“consensus cancellation” and “contractual cancellation” clearly stipulate that both parties to the contract have the right to terminate the contract.It is considered that the right to terminate the contract can only be enjoyed and exercised by the observing party.The right of rescission of a contract is a remedy channel granted to the observant by the law,so the breaching party has no right to rescind the contract.If the breaching party also enjoys the right to terminate the contract,it is contrary to the spirit of "strict contract observance" and "fairness and justice" pursued by China's "Contract Law." However,the “Xinyu Company v.Feng Yumei's Dispute over the Sale and Purchase Contract” announced in the Gazette of the Supreme People's Court in 2006 broke the traditional practice of “the right of rescission can only be enjoyed by the observing party”,andprovided an important guiding role for the breaching party in claiming to terminate the contract.With the development of society,it is becoming more common for breaching parties to take the initiative to terminate the contract because they cannot continue to perform the contract,at this time,if it is not granted the corresponding right to terminate the contract,it cannot get rid of the "law lock",which may lead to further losses expand.This is contrary to the principle of fairness and justice.However,the ambiguity of the law makes the practice of judging the question of "whether the breaching party enjoys the right of rescission" inconsistent,there are many cases of different judgments in the same case,which seriously damage the breaching party's interests.The article analyzes the legitimacy of granting the right to terminate the contract of the defaulting party and its existing problems and status quo in China.Based on the study of the practice of typical countries outside the region,this article puts forward corresponding construction measures based on China's actual situation..The article is mainly divided into the following sections:The first part introduces the background of this topic,the significance of the research and the current research status of the right to terminate the contract of the breaching party at home and abroad.Including the general research ideas of the article and the framework of the paper.The second part introduces the basic theory of the right to terminate the contract.This part includes the definition of the right to terminate the contract of the defaulting party and the determination of the nature of the right to terminate the contract of the defaulting party.In addition,the legitimacy of the breaching party's right to rescind the contract is also affirmed in terms of theory and judicial practice.The theoretical aspects include the legislative purpose of the right to terminate the contract,the value of efficiency,the principle of autonomy of the will,and the principle of good faith.In terms of judicial practice,it is demonstrated from the fact that the breaching party claims to terminate the contract in practice and the actual implementation is inadequate in practice.The third part introduces the current situation,existing problems and reasons analysis of the right of rescission of the breach of contract in China.The status quo is mainly introduced from three aspects: the status quo of legislation,theoretical controversy,and the status of justice.Existing problems are introduced from the aspects of the breaching party's right to exercise conditions and lack of laws.The reasons are analyzed from the ambiguity of legal regulations and the differences of legal thinking.The fourth part introduces the provisions of typical countries outside the territories on the right of termination of the defaulting party and draws experience from them.It is mainly the practice of three typical countries of France,Germany and Japan.The fifth part is the constructive measures for the breaching party to exercise the right to terminate the contract.It is mainly introduced from two aspects of legislation and justice.Legislation mainly includes clearing the contractual right of the defaulting party,exercise conditions,scope of application and exercise consequences.Judicially is to address the needs of judicial practice,to issue relevant judicial interpretations or to issue related guidance cases.