On The Contract Termination Right Of The Breaching Party

It is the mainstream view that the right to terminate the contract should be enjoyed by the non-breaching party.Affected by this view,the breaching party lacks the opportunity to get out of the contract,and the deadlock often occurs during the performance of the contract.In the process of judicial practice,through the current legislative provisions and the general view of legal theory in China,the judges usually can not find the basis for the decision,can only break the traditional view of "continuation" to make the decision.The gazette of the supreme people's court once published a classic case,which creatively ruled that the breaching party could terminate the contract voluntarily.At present,the civil code is being compiled.Experts and scholars in the legal field have different views on whether to grant the breaching party the right to terminate the contract.In the judicial practice,the judgment results of the cases in which the breaching party requests to terminate the contract are far from the same.In view of the urgency of judicial practice,this paper discusses whether to grant the breaching party the right to terminate the contract in order to break the deadlock of the contract,and puts forward the corresponding solution.In addition to the introduction and conclusion,this paper consists of four main parts:In the first part,through the introduction and analysis of the two main theories and cases of the right to terminate the contract of the breaching party,the common point is found that the right to terminate the contract of the breaching party cannot be applied to all cases,and the main difference is whether it is necessary to grant the breaching party the right to terminate the contract under specific conditions.The second part,from the basic principles of the contract law and related theories,demonstrates why the breaching party should not be given the right to terminate the contract.Firstly,giving the breaching party the right to terminate the contract is not conducive to the implementation of the principles of strict adherence to the contract,good faith and fairness.Secondly,many theories supporting the right of the breaching party to terminate the contract are based on the theory of efficiency default.Through the analysis of efficiency default,thispaper shows that the theory of efficiency default cannot prove that the breaching party should be granted the right to terminate the contract.Finally,from the analysis of the termination function of the contract,the termination right of the contract should be enjoyed by the non-breaching party,and should not be granted to the breaching party.The third part,by analyzing the legal provisions in the legislation of our country,explains that the contract law of our country and the civil code in the compilation do not give the breaching party the right to terminate the contract.Although the civil code does not give the breaching party the right to terminate the contract,it proposes a judicial termination system based on the comparative law to solve the contract deadlock.The fourth part mainly analyzes the judicial relief system.The addition of judicial rescission system to Chinese legislation can provide a legal basis for judges to adjudicate contract deadlock dispute cases,and provide a clear judgment basis for judges to order the rescission of contract under the situation of contract deadlock.Compared with the relief system stipulated in the contract law in China,the judicial relief system has obvious advantages.However,the judicial rescission system is not applicable to all cases,and its scope of application is limited.The conclusion of this paper is that the breaching party has no right to terminate the contract,but in order to solve the deadlock of the contract,the author puts forward a judicial rescission system based on the comparative law and introduces the judicial rescission system into our civil legislation.