Research On The Right To Rescind The Contract Of The Breaching Party

As a kind of written contract to protect transaction security and promote economic development,contract has been paid much attention all the time,and is treated cautiously in both legislative process and judicial practice.Advocating the spirit of contract,honesty and trust-keeping are the main melody of contract transactions.With the promulgation and implementation of Contract Law,the inherent principles of freedom,fairness and efficiency have also been revealed.The theory is developing,and at the same time,it is responding to the problems of the practice circle constantly.In the end,whether the breaching party can enjoy the right to terminate the contract,I believe most people’s first objection should be no,because breach of contract is immoral,is not to keep the promise.However,there is still one situation,that is,the breaching party is not subjectively out of malevolence,and if the contract is completed,it will not produce positive effects,such as the imbalance of interests between the two parties and the reduction of social efficiency,which will have a negative impact on the development of the market economy.In this case,the breaching party still can not enjoy the right of termination?It may no longer be a question of moral evaluation,but a question of legislative purpose and how the whole legal system is understood.Is the escort market transactions,"contract law" enacted fundamental purpose is to promote the development of market economy,is now the civil code enacted legislation purpose,"civil code" opens with the legislative purpose are clearly described,in order to protect the legal rights and interests of civil main body as the core,to adapt to the development of socialism as the fundamental purpose,formulated in accordance with the constitution.The previously promulgated Contract Law,from the perspective of system interpretation,for whether the "party" stipulated in Article 94 includes the breaching party,whether or not,Article 563 of the Civil Code is also faced with the same problem.In judicial practice,adjudication cases based on Article 110 of the Contract Law account for a large proportion.Paragraph 1 of Article 563 of the Civil Code fully absorbs Article 94 of the Contract Law.Is the provision on long-term performance of debts in Paragraph 2 responding to judicial practice?In addition,a small number of cases rely on the principle of good faith and the principle of fairness to make judgments supporting the termination of the contract by the breaching party.Meanwhile,the green principle stipulated in Article 9 of the Civil Code has also been applied to contract disputes.The author summed up various theories about whether the breaching party enjoys the right of termination,such as"affirmative theory" and "negative theory",and how to enjoy the right of termination in the theoretical circle.On the basis of full discussion and absorption of theoretical viewpoints,the author deeply analyzed judicial cases,drew conclusions,summarized rules,and demonstrated.In the fifth and sixth chapters,the theoretical basis and realization conditions are analyzed in order to contribute to the development of practice.