Research On The Rescission Rule Of The Breaching Party’s Contract

China’s traditional civil law theory has always advocated that only the observant party can exercise the right to terminate the contract,while the breaching party can’t exercise the right to terminate the contract.However,due to the rapid development of market economy,limiting the subject of contract termination to the observant party can’t solve the problem of contract disputes in civil and commercial transactions.Throughout the existing literature,the research on this kind of problems began with the Xinyu case,and the discussion on the right of the breaching party to terminate the contract reached its peak in the process of compiling,soliciting opinions and final deliberation of the civil code.Article 580 of the civil code expressly stipulates the relevant regulations for the defaulting party to apply for the termination of the contract in legal form,allowing it to apply to the court or arbitration institution under specific circumstances.Based on the existing judicial rules of the contract rescission law,this thesis focuses on the construction of the relevant rules of the contract rescission law,which is divided into four parts:The first part discusses the theoretical basis of the contract rescission rules of the defaulting party.Expounds the legislative construction,legitimacy and necessity of such problems,and interprets the contract rescission rules of the defaulting party.Article 580 of the civil code gives the defaulting party the right to apply for contract termination and the non defaulting party the right to terminate the contract;It is a kind of litigation right,not a simple one;It is the party’s right of judicial rescission rather than the right of judicial organ to rescind;The breaching party has the right to apply for contract termination,and the non breaching party has the right to apply for contract termination.The second part makes an empirical study on the judicial application of the contract rescission rules of the defaulting party.This thesis summarizes the judicial documents that apply article 580 to judge and reason since the implementation of the civil code,and based on this,focuses on the current situation of the judicial application of the rule of rescission of the contract by the breaching party.The basic situation is as follows: the application for termination of the contract by the breaching party is widely distributed in various civil and commercial contracts,and the cause of action is centralized and diversified;Most of those who apply for termination are the defaulting party,and the defaulting party advocates the termination of the contract around the three situations of excluding performance specified in paragraph 1 of article 580;The applicable conditions for the termination of the contract of the defaulting party are different,which is specifically reflected in the inconsistent identification standards for the time node,procedural requirements and other aspects of the termination of the contract,resulting in the frequent occurrence of different judgments in the same case;There are loopholes in the scope of application of the contract rescission rules of the defaulting party.The third part investigates the extraterritorial contract termination system.Through the study of the relevant provisions of the impossibility of contract performance in French law and German law,this thesis puts forward that the lifting of facts can’t be used to solve the situation of the impossibility of performance listed in the first paragraph of article 580 of China’s civil code.Through the study of the relevant systems of judicial Rescission in France,Germany and common law system,it is concluded that the requirements of judicial Rescission in France are more strict,judges have the right to review the right of contract rescission,and the judicial rescission system of non performance in Germany is similar to the rules of contract rescission of the defaulting party in China,which can be used for reference.The fourth part puts forward the construction idea of the contract rescission rules of the defaulting party.The first is to clarify the preconditions for the application of the contract rescission rules of the breaching party,that is,there are reasons for excluding the defense of performance;The second is to clarify the substantive elements of the application of the contract rescission rules of the breaching party;The third is to clarify the procedural elements of the application of the contract rescission rules of the breaching party;Fourth,the legal consequences of the application of the rules on the termination of the contract by the defaulting party;Fifth,clarify the time node for the termination of the contract by the defaulting party;Sixth,allow the analogy of deadlock in monetary debt contracts to apply the rules of contract termination of the defaulting party.