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The Legislative Analysis And Judicial Application Of Article 580 Of China's Civil Code

Posted on:2022-11-15Degree:MasterType:Thesis
Country:ChinaCandidate:L LiuFull Text:PDF
GTID:2506306761951349Subject:Intellectual Property Law
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The termination of the contract will directly result in the termination of the rights and obligations of the parties arising from the contract.At present,it has become a consensus that the non-breaching party has the right to rescind the contract,but whether the breaching party should have the right to rescind the contract is constantly debated.In the past judicial practice,in the case of contract deadlock,the judicial authorities quoted different provisions,gave different interpretations,and made different judgments in the same case.In the long run,it will seriously impair the authority of the law and destroy judicial credibility.Therefore,it is necessary and urgent to construct the rules for the breaching party to terminate the contract.The civil code of the People's Republic of China(hereinafter referred to as the "civil code")is positive to cater to the needs of socialist modernization construction,based on to provide effective guidance to the judicial practice,the article 580 of the deadlock situations to contract the breaching party terminate the contract provided for space,starting from the purpose of breaking contract impasse,helps to unify the referee standard,safeguard judicial authority.Through the method of empirical research,the basic situation of the distribution of cases is sorted out based on the classification criteria of region and cause of action,and the judgment tendency and reason are sorted out as the main line.It is found that the cases of the breaching party's appeal for termination of contract are widely distributed in regions,the distribution of causes of action is diverse,and the judgment tendency is different.In "civil code" before,the judges in the trial process is often quoted in 1999 "contract law of the People's Republic of China" hereinafter referred to as the "contract law" article 94,article 110 and the principle of changed circumstances,loss compulsory rules such as path for the referee,but with the limitation of the specification design not perfect cover contract deadlock situation.At the same time,there are many negations,doubts,doubts,anxieties and worries in the academic world,and it is difficult to form a consensus on the resulting theories and views.Article 580 of the Civil Code comes into being in accordance with the trend,so a full understanding of the relevant provisions in the Civil Code is the prerequisite for effective application in judicial practice.Through the textual interpretation of Article 580,the connotation of the legal provisions is explored.The Civil Code is of milestone significance to the perfection of China's legal construction and makes up for legal loopholes.However,section 580 is not perfect and its provisions are incomplete,affecting its understanding and application.Entering the era of "Civil Code",the author holds the legislative intention of Article 580 and analyzes the path of legislation to the judicial direction based on Article 48 of "Minutes of National Court Civil and Commercial Trial Work Conference"(hereinafter referred to as "Jiu Min Ji"),in order to contribute to the unification of judicial application standards.First,strict entity and procedure requirements should be established on the premise of the application of the right to rescind the contract of the breaching party.As far as the substantive elements are concerned,the right to rescind the contract shall conform to one of the circumstances stipulated in Article 580,and shall reach the extent that "the purpose of the contract cannot be realized".As far as procedural requirements are concerned,the breaching party shall apply to the people's court or an arbitration institution and bear the corresponding burden of proof according to the principle of who claims who provides proof.Secondly,the court is in a passive role in the judicial application of the contract termination right of the defaulting party,and can not arbitrarily determine that the contract is in a deadlock and declare the termination of the contract;Third,about the party in breach contract rescission of the judicial application,sound to expand the scope of application,identified the breaching party's subjective state,clear the legal effect of termination of the contract,and improve the contract implementation of judgment standards in judicial practice,thus reasonable apply,in addition should be reasonable to assume the cost of litigation,correctly understand the costs of the system design,under the lead of the civil code,Enlighten the thinking of existing rules.It makes the judge more maneuverable when the defaulting party applies to terminate the contract in judicial practice,and then better promotes the perfection of Article 580 of the Civil Code and realizes the benign operation of the rules in judicial practice.
Keywords/Search Tags:Party in breach, Contract deadlock, Contract termination, Liability for breach of contract
PDF Full Text Request
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