| The contract termination right of the defaulting party has developed from the judicial practice and theory,and has set off a controversy between the theoretical and the practical circles since its birth.The legitimacy of the defaulting party’s right to terminate the contract is finally confirmation at the legislative level.Giving the defaulting party the right to terminate the contract is conducive to breaking the contract deadlock and promoting the efficient use of social resources.It is of great research value to clarify how the Civil Code stipulates the defaulting party and how to apply it.The article follows the hermeneutics method,analyzes the legislative expression of the defaulting party’s right to terminate the contract,puts forward perfect suggestions in view of the insufficient scope of application,constitutive requirements and legal consequences,and standardizes the exercise conditions of the defaulting partyand refines the judgment rules of the court in the procedure.Paragraph 2 of Article 580 of the Civil Code is the legislative expression of the contract termination right of the defaulting party."Termination of contractual rights and obligations" refers to the termination of the contract,and "parties" refers to the defaulting party.Although this paragraph makes up for the legislative loopholes in Article 110 of the original Contract Law,the provisions are still relatively principled,not only limited in the scope of application,but also does not specify the constituent elements and legal consequences of the contract termination right of the defaulting party.In order to avoid the separation between the substantive rules and the procedural rules,the contract termination right of the defaulting party forming the right of action also requires its connection with the procedural rules.From the perspective of substantive rules,improving the application scope,constituent requirements and legal consequences of the contract termination right of the defaulting party is conducive to the accurate application of the law.Adjust the scope of the contract termination right of the defaulting party through the expansion application of non-monetary debts and the restrictive interpretation of contractual purposes;the termination of the contract should also conform to the constituent requirements of the defaulting party is not defaulting in bad faith and the non-defaulting refusal to terminate the contract in violation of the principle of good faith.In terms of legal consequences,it is appropriate to serve the copy of the complaint or the arbitration application to the other party as the effective point of the termination of the contract,and to compensate the non-defaulting party for the lost performance interests of the difference.From the perspective of procedural rules,improve the contract termination rules of the defaulting party,including standardizing the exercise conditions and refining the judgment rules.The defense that the defaulting party cannot continue to perform the contract in the lawsuit shall be regarded as a request to terminate the contract,and by setting the re-negotiation obligation of the defaulting party,"negotiation fails within a reasonable period" as the prosecution element.The court shall conduct a substantive review of the requirements of termination.If satisfied,the court shall judge the termination of the contract and file a compensation lawsuit to the non-defaulting party.The contract termination right of the defaulting party shall not affect the exercise of the legal termination right of the non-breaching party.If both parties agree to terminate,the agreement shall prevail. |
