Study On The Handling Model Of Breach Of Contract Advocated By The Breaching Party

The termination of the contract has the effect of exempting the parties from the obligation to pay and the binding force of the contract.Therefore,for the legal termination of the contract,the laws of various countries often restrict the subject of rights,the conditions of exercise and the manner of exercise.According to the general statement,the legal subject of the right to terminate the contract is generally limited to the contracting party.However,in recent years,based on China’s current "Contract Law" Article 94 or Article 110 as the normative basis to determine the establishment of the "default party’s right to terminate the contract" and the common law system "efficiency breach" theory as the support,advocate in the "contract The view of continuation of the performance of the defense provided for in Article 110 of the Law gives the breaching party the right to terminate the contract.In addition,the addition of "...,the people’s court or arbitration institution can cancel the contract at the request of the other party" added to the first and second review drafts of the "Civil Code Contract Draft(Draft)" also caused everyone’s Extensive discussion.In order to fully understand the current status of China’s judicial practice on the above issues,the author comprehensively searched and queried the judicial judgments concerning the breach of contract by the breaching party on the judgment documents online,totaling 105 cases.On this basis,this article focuses on the theme of "the processing mode of the breaching party’s claim to terminate the contract",and gives the breaching party the right to cancel the contract by analyzing the practical judgment mode of the breaching party’s claim to terminate the contract,analyzing the legal basis involved,and transplanting the "efficiency breach" theory The legitimacy and other issues have been fully sorted out,summarized and analyzed,with a view to being able to address the breaching party ’s claim to rescind the contract and find a way for the court to deal with both legitimacy and rationality in China.In addition to the introduction and conclusion,this article is divided into the following four parts:In the first part,the breaching party advocates the practice judgment model of contract cancellation.After sorting and summarizing the collected jurisprudence,the author summarizes the four main refereeing modes of the court in the judicial practice when facing the breach of the contract by the breaching party,and reveals that there are "different referee paths" for this issue in the current practice.As well as the "different interpretation of legal norms" and other issues.The second part is "the right of cancellation of the breaching party" from the perspective of positive law.In view of the problem of "different interpretation of legal norms" in judicial practice,this part strictly follows the method of legal interpretation.The legal principles of Article 94,Article 110 of our current "Contract Law" and "freedom is not prohibited by law" After an in-depth analysis,it was finally concluded that the current contract law in China does not explain the breaching party ’s right to terminate the contract.The third part is to support the denial of the possibility of the "default party’s right to terminate" with the theory of efficiency breach of contract.From the perspective of legal continuation,this part mainly refutes the theoretical point of view of "transplantation efficiency breach of contract theory,which gives the breaching party the right to cancel the contract",which is highly regarded by the academic circles.Because the creation of the "default party’s right to cancel" is incompatible with China’s existing contract law system,the idea that transplantation efficiency breaches the theory to create the default party’s right to cancel is also flawed in the legal argument and measures the society’s overall economy and efficiency The theory of efficiency breach of contract is not "efficiency" and other reasons.The idea of creating a "right to cancel the contract of the breaching party" based on the theory of efficiency breach of contract is not justified and reasonable.In the fourth part,the breaching party advocates the construction of the termination contract processing model.In the context of the "Civil Code(Draft)" finally deleting the rules of the breaching party’s application to terminate the contract,the author refers to the deliberation drafts of the "Civil Code Contract(Draft)" and the "Nine The Minutes of Minutes and other relevant regulations try to construct a processing model that takes into account both formal justice and substantive justice under the current legal system of our country from the perspective of the judiciary.The author believes that when trying a case in which the breaching party requests the termination of the contract,each court should take the principle of strict observance of the contract as a rule to correctly play the guiding function of the law and strictly maintain the contract binding force.But at the same time,in order to give full play to the effectiveness of the property,the liquidation has actually fallen into the performance of the contract that cannot be performed or has no meaning of performance.Each court can also consider various factors in a specific situation,and exceptionally allow the breaching party to be discharged contract.