| Coinciding with the compilation of the "Civil Code",scholars have analyzed the "contract deadlock" from the perspective of legislative theory,and put forward corresponding legislative suggestions.Based on whether to grant the breaching party the right to rescind the contract,the academic viewpoints can be divided into three categories,namely "restricted affirmative theory","judicial rescission theory",and "fundamentally negative theory".In the drafting stage of the Civil Code,the breaching party's right to rescind contract has undergone many twists and turns,and the draft has been changed several times.In the end,the provisions of Article 580(2)of the Civil Code adopt the "judicial rescission theory" in form,that is,the breach of contract is allowed to apply to the court or arbitration institution for rescission of the contract.In the contract compilation system of the "Civil Code",based on systematic considerations and from the perspective of aggravating the performance defense,the legislators put the content of the breaching party's right of rescission in the chapter on liability for breach of contract,which is reasonable and inevitable.Now that the Code has been established,we should conduct an in-depth analysis of the legal provisions from the perspective of interpretation theory,and further clarify the conditions and scope of application,so as to facilitate solving practical problems.Firstly,it should be affirmed that the "Civil Code" has given the breaching party the right to rescind the contract in a substantial sense,and the breaching party's application to the court or arbitration institution exists only as a way to exercise the right,and does not affect the nature of the right itself.Secondly,Contract purpose should based on the objective purpose,and it shall be made with reference to the subjective purpose of the non-compliance party.Thirdly,for the assumption of liability for breach of contract,attributability should be regarded as a basic element,and at the same time,the observant party should fulfill its obligation to mitigate damage,and the specific amount of compensation can be used as a reference in place of performance costs.In the end,the "contract deadlock" formed by monetary debt should allow the application of this provision by analogy,because the difference in the form of expression cannot fundamentally deny the identity of the two types of "contract deadlock" at the source.And the purpose of this article is to handle both of them,or a new legal loophole will be constituted.The judicial path is chosen for the rights operation procedure.Although this will increase the cost of rights protection for the parties to the contract and increase the workload of the adjudication organ,the relevant rulings can use their unique credibility and probative force to correct the innate moral flaw of the breaching party to terminate the contract.The breaching party's right to rescind the contract shall be limited by a one-year expulsion period,and the time when the judicial organ determines that the contract is rescinded can be traced back to the time when the notice reaches the opposite party.The criteria for judging whether the contract can be rescinded should include the two elements that the breaching party is not maliciously breaching the contract and that the counterparty does not rescind the contract,which violates the principle of good faith.Since the counterparty does not terminate the contract and requires continued performance,it is not a complete abuse of rights,so the rule against abuse of rights should not be considered in the judgment criteria.There is no precedent in the world civil law theory to grant the breaching party the right to rescind the contract.This is a theoretical and institutional innovation made by the civil law academic circle in my country according to the actual needs.It contributes to the development of the world civil law theory with Chinese solutions and Chinese wisdom.It should be affirmed. |
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