| The traditional theory of contract law in China holds that the subject of the legal right to rescind a contract is only the opposite party of the defaulting party,but it can not solve the problem of contract deadlock with the economic and social development.The research on the contract rescission right of the defaulting party began in the Xin yu case of the Supreme Court Bulletin in 2006,and the compilation of the Civil Code pushes the discussion of this issue to the most exciting part,which has important research value.This paper demonstrates the necessity,legitimacy and rationality of the contract rescission right of the defaulting party,which is divided into four chapters.The first chapter introduces that the right to rescind the contract of the defaulting party has a sufficient basis of judicial practice.The basic situation of the relevant dispute cases is that the number of cases is increasing year by year,the types are concentrated and diverse,and most of the defaulting parties in the dispute cases are plaintiffs.The empirical study of the relevant cases shows that the referee’s point of view is generally inclined to support the defaulting party’s claim to terminate the contract.Further analysis of its reasoning can be summarized as follows: in order to balance the interests of both parties,the purpose of the contract can not be realized,the contract can not continue to be performed,and to promote the best use of things,to avoid the waste of social resources.The second chapter discriminates the relevant system of the contract rescission right of the defaulting party.In view of the more concentrated articles of law invoked by the court in handling such cases in the 253 judicial documents and the existing alternative system put forward by those who hold the "negative theory",that is,Article 563,paragraph 1,Article 580,paragraph 1,Article 591 and Article 533(Article 26 of the former Judicial interpretation of contract Law(II))of the Civil Code are analyzed one by one.It is concluded that the above system can not be used as an alternative to the contract deadlock to be solved by giving the defaulting party the right to terminate the contract,and it is very necessary to empower and upgrade it to legislation and normative design.The third chapter combs the theoretical disputes related to the contract rescission right of the defaulting party.The theoretical dispute about the contract rescission right of the defaulting party is mainly manifested in two aspects: the existence of the right and the nature of the right.First of all,the article refutes the view that the negativism violates the basic principles of contract law,such as strict observance of contract,fairness and good faith,does not accord with the value of efficiency and will lead to moral hazard.Then it demonstrates the legitimacy of giving the defaulting party the right to terminate the contract from three aspects: in line with the purpose and function of the contract rescission system,in line with the theory of relief for breach of contract and in accordance with the efficiency value of private law.Finally,the author responds to the nature of the right and obtains the rationality of the theory of the right of termination.The fourth chapter interprets the content of paragraph 2 of Article 580 of the Civil Code,that is,this article actually gives the defaulting party the right to terminate the contract,but there are logical problems in theory and lack of ideal constitutive elements.At the same time,the legal effect after the termination of the contract is unclear.And combined with the provisions of Article 48 of the Nine people’s minutes and paragraph 3 of Article 353 of the Civil Code contract(second trial draft),this paper puts forward corresponding suggestions to improve the above-mentioned problems,so as to make it more suitable for the development of judicial practice. |
