Study On The Contract Rescission Right Of The Defaulting Party

As an important element of the contract rescission system,the exercise of the defaulting party’s right to release the contract can be studied from the basic theory of contract rescission.The new paragraph 2 of Article 580 of the Civil Code is intended to solve the problem of contract deadlock caused by the neglect of the parties with the right to rescind the contract when the contract has no possibility of continuous performance in practice.Although this clause is faced with great theoretical controversy once it is introduced,the concerns raised by the deniers that the defaulting party has the right to rescind the contract beyond the strictness of the contract can be resolved from the essence of the right itself,that is,the defaulting party has the right to apply to the judicial authorities for rescission of the contractual rights and obligations.Based on the basic theory of contract rescission,this paper holds that the right to rescind the contract of the defaulting party is a relief right in nature,and as a right to appeal,it is an aggravating rule for the continued performance of the defense system.According to the negation of the breaching party’s right to rescind the contract,a new understanding of contract ethics can be made,and it is clear that the contract rescission right of the defaulting party does not deviate from the basic principles of strict contract and civil law,such as good faith and fairness and justice.The rescission right of the defaulting party is based on the efficiency value of the contract rather than the efficiency breach theory.In the case that there is no other suitable alternative in the current contract law,it is reasonable to affirm the right to terminate the contract of the defaulting party,which is of great significance to improve the contract rescission system and solve the legal deficiency in the application of judicial decisions.By analyzing the legislative and judicial aspects of the right to rescind the contract of the defaulting party,it can be found from the process of legislative changes that there are many controversies about the conditions of use and judgment standards caused by the ambiguity in the legislative expression.From the current situation of its judicial application,we can see that before and after the introduction of paragraph 2 of Article 580,the courts have changed their thinking and views on the application of the defaulting party to rescind the contract,and the empirical analysis of such cases,sorting out the focus of the relevant litigation disputes,we can see that the issue of damages occupies an important position in the judicial practice of such cases.At the same time,the constraints on the predecessor that the defaulting party has to initiate litigation to resolve the impasse of the contract can avoid malicious breach of contract and abusive litigation,but it also puts great demands on the judges’ legal and business literacy,who may be unfair to the parties in making the final decision on whether the contract can be dissolved.In order to improve the right of the defaulting party to apply for the cancellation of the contract,we should further clarify the judgment standard and the meaning of failure to accomplish the purpose of the contract,which can be based on the concept of fundamental breach of contract in common law.It is clear that the subject of this right is only the defaulting party,and the procedure for the defaulting party to apply for cancellation mode is regulated.In terms of judicial measures,the court should give full play to the judicial organs’ duty of interpretation and focus on the issue of compensation for damages to the defaulting party in the trial.