| The new Article 580,the provisions of paragraphs 2,of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code"),i.e.,the rule of judicial termination of contract,has aroused many controversies in academic circles,and scholars from various parties have presented different interpretations of this provision,which makes the practice risk of inconsistent application of judicial decisions.When interpreting the rules of judicial termination of contract,the legislative purpose of the legislator,social reality and other practical needs should be taken into account,as well as the basic principles of civil law.This article considers the new Article 580,the provisions of paragraphs 2 as the rule of judicial termination of contract,that is,if the contract between the parties has one of the three excluded circumstances of non-pecuniary debt performance failure and the contract purpose is defeated,the judicial authority or arbitration institution has the right to terminate the relationship of rights and obligations between the parties at the request of a party’s lawsuit or arbitration.Considering further,the rules of judicial termination of contract abandon the perspective of the defaulting party and the party in breach of contract for the purpose of terminating a meaningless contract,and flexibly consider a broader scope and conditions of application,i.e.,the scope of application of the rules of judicial termination of contract only needs to consider whether it is a non-pecuniary debt,and the interpretation of non-pecuniary debts can be expanded;the conditions of application of the contract in principle satisfy one of the three exclusions of non-pecuniary debts’ failure to perform In principle,if one of the three exclusions of non-pecuniary debts is met and the purpose of the contract is defeated,the judicial authority or arbitration institution can terminate the contract at the request of the parties,and only under special circumstances is the limit of application of the judicial termination rule considered.In the first part of this article,the current situation and problems of the application of judicial termination of contracts are presented,pointing out that the scope of application and conditions of application of the rules of judicial termination of contracts are controversial,and judicial practice also shows the phenomenon of inconsistency in the scale of adjudication and lack of clarity in reasoning,especially in the application of the provisions paragraph 2 of Article 580 of the Civil Code,how to harmonize the provisions of the Minutes of the National Conference on Civil and Commercial Judicial Work of the Courts(hereinafter referred to as "the Minutes of the Nine Civil It also reviews the doctrine of the legal nature of Article 580(2)of the Civil Code,and concludes that the better interpretation is the "judicial termination doctrine".The second part,based on the above,argues that Article 580,paragraph 2,of the Civil Code is judicial termination in nature,and that the termination of the contract is subject to judicial or arbitral bodies,unlike the legal right of the parties to terminate.The argument for judicial termination of contract is mainly based on the theoretical basis and the interpretation of the current law,among which the theoretical basis is the theory of restriction of meaningful autonomy and the theory of efficiency value in modern civil law with the social orientation as the core;in addition,the rationality of judicial termination can also be argued from the relevant articles such as Article 557 and Article 558 of the Civil Code through appropriate civil law interpretation methods.The third part suggests how the judicial termination rule should be applied: first,it is clear that the scope of its application should not use vague terms such as contractual impasse,and that the distinction between transient and continuing contracts is not useful.The rules of judicial termination of contracts are applicable to non-monetary debts,but in special cases they can be interpreted in a broader sense to include non-monetary subordinate debts or obligations attached to them,in order to expand their scope of application;secondly,the conditions of application should be relaxed.The text provisions of the Civil Code are used as the principle conditions of application,i.e.,three cases of non-pecuniary debt performance failure,contract purpose failure,and application by one party,and the cases of serious violation of basic principles of civil law by the parties are considered as exceptions. |
