On The Right To Rescind The Contract Of The Breaching Party

For a long time,there has been a great controversy in the academic circle and judicial practice about whether the breaching party enjoys the right to terminate the contract.With the formal implementation of the Civil Code,this highly controversial topic has been basically settled.This paper takes the relevant cases in the judicial practice of our country as examples,and points out the different judgments made by the court when the breaching party sues to rescind the contract,so as to lead to the discussion on the legitimacy of the breaching party‘s right to rescind the contract and the conditions for exercising it.Secondly,the legislative process of the right to terminate the contract of the breaching party is analyzed.Although there are several twists and turns,the right to terminate the contract of the breaching party is clearly stipulated in Article 580(2)of the Civil Code.By analyzing and comparing the provisions of Anglo-American law system,civil law system and international treaties on the right of termination of the contract of the breaching party,this paper explains the influence of extraterritorial laws on Chinese legislation and its reference significance.As for whether the breaching party has the right to terminate the contract,there are two viewpoints in theory: “ affirmative ” and “ negative ”,and this paper supports“affirmative”.Finally,this paper argues that the civil code of item 2,article 580 of the conducive to break the contract stalemate,make up the legal loophole,which is endowed with the breaching party to apply for termination of the contract rights,the right to terminate a contract,nor judicial rescission,the exercise of the right to be on the premise of paragraph 1 of this constraints and may not expand the applicable scope.