An Empirical Study On The Dissolution Of The Contract By The Default Party

The compliance party enjoys the contract rescission right is our country contract rescission theory consistent cognition.With the support of the court in Xinyu case,more and more cases of breach of contract have emerged,which leads to the discussion on whether the breach party can terminate the contract,the conditions and consequences of the breach party’s termination of the contract.First of all,there are two kinds of jurisprudence in judicial practice,positive and negative,and there are different views in academic circles.Based on the fact that the contract rescission system does not have the function of punishment,the limited rationality of the subject of the transaction and the maximization of social benefits,the defaulting party has the legitimacy to terminate the contract.Therefore,the defaulting party can terminate the contract.Secondly,the conditions for the defaulting party to terminate the contract are inconsistent in judicial practice,which are manifested in the application of different legal norms and the different understanding of relevant legal rules.Legislation,the relevant legal norms themselves also have drawbacks.The conditions for the defaulting party to terminate the contract shall include physical conditions and procedural conditions.The entity condition is the contract deadlock,the procedure condition is the lawsuit.Contract deadlock means that in a continuing contract or a temporary contract,the defaulting party is unwilling to perform or continue to perform monetary or non-monetary debts but does not have malice,and the defaulting party wishes to terminate the contract but has no right to terminate it.Finally,in practice,there are three main problems in the consequences of the breach party’s termination of the contract,namely,the confusion of the time of the termination of the contract,the difference of the damages,and the inconsistency between the termination of the contract and the treatment of the damages.The author believes that the consequences of the breach of contract should be unified,the time of termination of the contract should be the date of the judgment,and the defaulting party should compensate for the performance of the interests after the termination of the contract,but the damages can be dealt with separately.