A Study On The Contract Termination Right Of The Breaching Party

There are significant differences in the cognition of whether the breaching party has the right to terminate the contract in the current practice and theory circles of our country.In the practical judicial position,there are obvious differences in the interpretation and application of whether the breaching party enjoys the legal right of rescission as stipulated in Article 94 of the current contract law.At the same time,some judges make a decision to terminate the contract directly according to Article 110 of the contract law.From this point of view,there is obviously a dilemma in practice that the breaching party requests to terminate the applicable legal basis of the contract.With regard to the relevant legislative provisions on the termination of the contract by the breaching party,the preliminary contract part of the civil code(Draft)and the minutes of the civil and commercial trial work meeting of the national court issued on November 18,2019 clearly pointed out that the breaching party can apply for judicial termination of the contract under certain conditions,and the direct provisions on the termination of the contract by the breaching party once again triggered a heated discussion on the right of the breaching party to terminate the contract.In the draft of the civil code of the People’s Republic of China on December 16,2019,the provisions of the third paragraph of article 353 in the contract part of the civil code(Draft)on the termination of the contract by the defaulting party are deleted.At present,on May 28,2020,the "Civil Code of the People’s Republic of China" contract compilation adopted by the Third Session of the 13 th National People’s Congress is also to maintain the status quo of deleting the provisions on the directness of the breaching party to terminate the contract.In the academic circles,the dispute about the right of rescission of the party who breaks the contract mainly focuses on the basic legal principle,morality,the lack of actual performance system,the theory of efficiency breach of contract,the interpretation of legal provisions and so on.Through the case study,the current main task is to solve the problem of "contract deadlock" and legal application caused by the breach of contract party’s proposal to terminate the contract,at the same time,to avoid violating the principle of strictly abiding by the contract,to prevent arbitrary breach of moral hazard and other situations.In this regard,the clear provisions on judicial termination of the breaching party,to a certain extent,are the transitional design of the vertical view on whether the breaching party has the right to terminate.Under the control of judicial procedures,when reviewing the breaching party’s compliance with non malicious breach of contract,continued performance will result in serious losses,willing to compensate for losses and other situations,the parties will be separated from the contract,so as to solve the dilemma of practical contract deadlock.The rescission regulation under the restriction is also a benign regulation to test the social effect that the breaching party will have when rescinding the contract.The general idea of legislation can at least give clear guidance to the trial and guide flexible trial thinking through effective norms such as judicial interpretation.In a word,we should make clear the validity norms of the party in breach of contract,strictly control the elements of the party in breach of contract,not only prevent opportunistic behaviors such as moral hazard,but also improve the legislative design,and formulate the optimization norms that are legal and reasonable to protect the interests of all parties to the contract.