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Defaulting Party's Of The Contract-termination Right

Posted on:2021-03-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y SongFull Text:PDF
GTID:2416330647953887Subject:Law
Abstract/Summary:PDF Full Text Request
After the promulgation of the "Contract Law",both parties to the transaction must abide by the contract concluded by the two parties,and the principle of strict contract observance has become an important principle of the contract law.However,there are exceptions to any principle in principle.The various complicated situations in practice have caused the contract law to strictly implement the contract and at the same time have to stipulate the establishment of an exit mechanism when the contract cannot be performed.Therefore,the contract cancellation system came into being.Our country's contract cancellation system has formed our country's contract cancellation system on the basis of drawing on the contract cancellation systems of other foreign countries.Negotiation cancellation and agreement cancellation are formed by the agreement of both parties to the contract,and generally there is no dispute.However,the statutory cancellation system focuses on protecting the interests of the observant party,so when the breaching party wants to cancel the contract,it generally cannot receive the support of the court.With the development of the economy,it is not allowed for the breaching party to cancel the contract,which constantly leads to contract disputes.Does the law clearly stipulate that the breaching party can enjoy the right to terminate the contract.Legal norms can be cited.Generally,when a breaching party breaches the contract,China's "Contract Law" has clear legal provisions on the relief method for the breaching party to breach thecontract.The breaching party may notify the other party to terminate the contract by exercising the legal right to terminate the contract.Since the birth of the contract cancellation system,various contract disputes have been resolved in an orderly manner,which has enabled the maintenance of the market economic transaction order and avoided the waste of resources.However,as the market economy diversifies at multiple levels,the loopholes in the law will appear,and the original perfect system will become imperfect with the development of the economy.That is,when the defaulting party is facing a transaction dilemma,the observing party is for its own benefit.,Do not take the initiative to terminate the contract,resulting in deadlock in the transaction.Then when facing the breaching party that wants to cancel the contract,whether the breaching party can have the right to cancel the contract is difficult to find clear and specific provisions in our contract law.Over the years,whether in theory or practice,the dispute has been debated,So far there is no conclusion.When various courts resolve the issue of contract deadlock,there are those who support the breaching party to cancel the contract,and some also object to it.The courts at all levels have different judgments,which has always been a big problem that plagues the practical community.In 2019,the Second Tribunal of the Civil Trial Division of the Supreme People's Court edited and promulgated the "Minutes of the Civil and Commercial Trial Work Conference of the National Court",which stipulated the prosecution and cancellation of the contract by the breaching party and was applied in practice.At the time of the compilation of the Civil Code,the first and second review drafts of the Civil Code contract stipulated the issue of the breaching party 's right to terminate the contract.However,after the announcement,there was a lot of controversy,and it was deleted when the third review draft was published.Whether it is necessary to give the breaching party the right to cancel the contract really needs careful argumentation and practical testing,because making the breaching party also enjoy the right to cancel the contract is indeed a huge challenge to the traditional contract law system.According to the theory that the breacher cannot benefit from the contract,After all,the breaching party is the party that disrupts the order of the contract and allows it to enjoy the right to terminate the contract.Withoutreasonable proof,it is difficult for the public to accept it.Therefore,the author believes that the focus of the breaching party's exercise of the right to terminate the contract should not be to empower it,but to break the contract deadlock,save transaction costs,balance the interests of all parties,and free the parties to the contract from the transaction deadlock and resume the transaction Order is a last resort.This article is based on the practical problem that the contract cannot continue to be performed in practice,and the defaulting party is willing to compensate the loss of the contracting party in exchange for damages in exchange for the termination of the contract.Explore the theoretical basis and restrictive conditions of the breaching party's exercise of the contract cancellation right,and on this basis,study the realization path of the breaching party's exercise of the contract cancellation right,so as to solve the problem of contract deadlock.Regarding the realization path,the author makes an argument from the perspective of hermeneutic theory and the realization of legislation.The author believes that if the problem can be solved through hermeneutical theory,there is no need to adopt legislative means.This topic combined with cutting-edge theory that the breaching party can terminate the contract is necessary and justified.Through path exploration,I think that it is possible to fill in the loopholes of Article 94 of the Contract Law with the principles of good faith,fairness and fairness through the method of hermeneutics and in conjunction with the relevant provisions of the minutes of the Trial Conference.,Can exceptionally allow the breaching party to sue and terminate the contract.
Keywords/Search Tags:Breach of contract by defaulting party, Contract deadlock, Honesty, The principle of fairness, Loophole
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