On The Termination Of The Contract By The Breaching Party

According to the traditional contract law,the right to terminate a contract can only be granted to the non-breaching party.If the non-breaching party causes damage to the non-breaching party due to its own fault,the non-breaching party should be condemned for its breach of contract.In 2006,the supreme people’s court published a court case supporting the view that,fdue to the high cost of performance,the continued performance will lead to the imbalance of interests of both parties,and the breaching party can therefore terninate the contract11.However,the conclusion that the breaching party is entitled to terminate the contract cannot be drawn directly from the current legal provisions.The author is puzzled as to whether the breaching party can terminate the contract.This paper first reviews the present situation of theory and judicature practice,and expounds the problems of prohibiting the party in breach of contract from the two aspects of the gap between legislation and judicature and the limitations of actual performance.Then,the paper mainly demonstrates the legitimacy of the contract cancellation by the breaching party from the perspective of legal theory.In the case that the breaching party can terminate the contract,the article explains how to exercise the right to terlinate the contract.Chapter one,through case introduction and thinking,puts forward the argunent of this paper,and analyzes the relationship between the current legal provisions and the party in breach can terminate the contract.In chapter two,the author investigates the situation of canceling the contract of the breaching party from two aspects:theoretical research,foreign laws and regulations and the present situation of judicial practice in China.The third chapter discusses the problems of prohibiting the party in breach of contract from two aspects.Firstly,it expounds the disconnection between legislation and judicial practice,and then it expounds the limitations of actual performance from three aspects,namely,the cost of actual performance is often too high,the special situation is contrary to fairmess and justice,and the actual performance cannot certainly realize the purpose of the contract.Chapter four demonstrates the legitimacy of the contract termination of the breaching party from the perspective of legal theory,that is,the contract dissolution of the breaching party conforms to the design concept of the contract termination system,conforms to the value requirements of the contract law,and reflects the principles of fairness,honesty and credit.Chapter five puts forward three conditions that the breaching party must meet at the same time to terminate the contract Second,continuing to perform is too harsh to the breaching party;Third,the breaching party must fully compensate for the loss.Chapter six discusses the path of the party in breach exercising the right to terminate the contract Section One first clarifies the nature of the right to terminate the contract of the breaching party,and puts forward the view that the nature of the right should be the formation of the right of action.In the second quarter,based on breach of contract rescission shall be formed on the basis of his right to appeal,the default patty in exercising its right of termination of the contract must be in the form of litigation to the court or arbitration institution,court or arbitration institution needs to remove conditions for substantial examination,examination as to substance that can remove,should actively contribute to reconciliation,change contract,remove or change the contract is still not enough,if the consultation to termination of the contract.