Study On The Termination Of The Contract By The Breaching Party

Whether the contract can be terminated by the breaching party or not,in our country's legal system,the answer is generally negative.However,in judicial practice,there are not a few cases of contract termination caused by the breach of contract by the breaching party,and the consequences of contract termination are often in line with people's expectation of fairness and rationality and are regarded as a reasonable result.So this creates a real conflict and contradiction,and we can't help thinking,is it right for the breaching party to terminate the contract?This problem not only brings a lot of troubles to the front line of the trial,but also causes a wide debate in the academic circle.If the termination of the contract by the breaching party can be justified within a certain scope,then what is the scope of its application and whether the right of the breaching party to terminate the contract can be recognized at the legislative level and relevant systems should be established and improved?This paper will elaborate on the problems found,and discuss the above questions,mainly through the following aspects to study: the first part is based on the reality,specifically introduce the status quo of China's contract termination system,and through the interpretation of the text of the law,put forward whether the breaching party can terminate the contract,and introduce the opposite views of the relevant scholars,the attitude of the practice,etc.The second part looks at the termination right of the breaching party from the perspective of comparative law,including the practices and provisions of civil law,Angol-American law and international law.The third part demonstrates the validity of the termination of the contract by the breaching party,mainly from the practical needs of judicial practice,the relationship with the basic principles of the contract law,and the relationship with the contract termination system.The fourth part analyzes the relationship between the termination of the contract by the breaching party and the principle of situational change,and puts forward the view that the termination of the contract by the breaching party should inherit the beneficial value of the principle of situational change.The fifth part discusses its possible scope of application,mainly including that the performance of the contract will result in a disproportionate loss of efficiency,the contract party has breached the contract without fault,the continued performance of obstacles,the breaching party to give full compensation,etc.It also tries to imagine the possible realization path of the right of the breaching party to terminate the contract.The author thinks that the way of judicial or arbitral relief should be applied and the procedure should be appropriately limited.