On The Understanding And Application Of The Breaching Party’s Right To Terminate The Contract

The traditional theory of contract law holds that under the system of fundamental breach of contract,only the non breaching party has the legal right to terminate the contract.However,with the deepening of theoretical research and judicial practice,when facing the problem of contract deadlock that cannot be effectively solved by the original system,more and more views tend to start from the defaulting party to find a way to solve practical problems,so as to support the defaulting party to terminate the contract,which has become the focus of discussion.In order to unify the standards of judicial adjudication,the minutes of the national civil and commercial trial meeting of the courts(hereinafter referred to as the minutes of the Ninth People’s court)adopted in 2019 and the civil code of the People’s Republic of China(hereinafter referred to as the civil code)adopted in 2020 have successively established the rules for the dissolution of the breaching party.In terms of the application of article 580 of the civil code in the current judicial practice,due to the vague expression of the legal provisions,and there are still some disputes about the provisions of article 580 of the civil code and Article 48 of the nine civil minutes,the determination of whether the conditions for dissolution are met still needs the discretion of the judge.This paper holds that there are limitations in the discretion of judges,and we should further improve the exercise rules of the right of the breaching party to terminate the contract in the relevant judicial interpretation through the method of interpretative theory.In order to strictly limit the exercise of the rights of the breaching party,when judging whether there is a contract deadlock,we should strictly judge whether the conditions such as the impossibility of contract performance and the impossibility of purpose have been met.Even if the conditions for the defaulting party to apply for termination are met,in order to ensure that the losses suffered by the observant party can be fully remedied,the time of termination of the contract shall be subject to the effective time of the judgment,and the compensation for damages for breach of contract shall be subject to the actual loss.On this basis,the judge shall comprehensively consider the degree of error of both parties and other factors.This paper is divided into four parts: the first chapter briefly combs the development of the breach termination system,analyzes the changes of the value concept behind the development of the system,and shows that the proposal of the right of claim for breach of contract conforms to the background of the times and value needs.The second chapter is mainly the normative interpretation of the right of the breaching party to terminate the contract in the current legal system,including the interpretation of the scope of application,exercise conditions and legal consequences of the system.The third chapter mainly analyzes the judicial application problems caused by the unclear provisions of the civil code.Including the non-uniform identification standard of contract deadlock,the inconsistent time of contract termination,the uncertainty of damage compensation calculation rules and the unclear exercise period of contract termination claim.The fourth chapter is mainly based on the judicial problems analyzed,and gives some suggestions on perfecting and applying the system of the right of claim for rescission of the contract of the defaulting party in China.Specifically,it includes concreting the identification standard of contract deadlock,unifying the time of contract termination,and clarifying the liability rules after the breaching party exercises its rights.Further refine the unclear provisions to make them more operational and practical,and emphasize that the discretion of judges should be subject to necessary supervision and restriction.