The Study On The Dissolution Right Of Contract Of The Breaching Party

There is not clearly definition of the subject of legal dissolution right of contract in the Contract Law of the People's Republic of China and its judicial interpretations.The common view in the academic circles is that it is only includes the non-breaching party and excludes the breaching party.However,there are many judicial cases that support the dissolution right of contract of the breaching party.In recent years,a few of scholars advocate that the dissolution right should be given to the breaching party under specific circumstances.To some extent,this trend has broken through common view in the academic circles.In view of this trend,for the purpose of discuss whether the breaching party should possess the dissolution right,this paper is divided into four parts.The first part is about analyzing the judicial actuality.By analyzing a large number of cases which are selected on Pkulaw.cn,there are differences in results and standards of judicial cases about the dissolution right of contract of the breaching party.And then lead to the theme of this paper.The second part is about combing and analyzing the relevant provisions of the legal dissolution right of the current laws in our state.In addition to the provisions of the Contract Law of the People's Republic of China,the relevant judicial interpretations of contracts on financial leasing and commercial housing sale and local judicial documents provide that the certain parties can dissolve contracts under specific circumstances in some nominative contracts,there is no clear legal basis about dissolution right of contract of the breaching party in our state.Firstly,according to the interpretation of the general provision of the legal dissolution right,the breaching party has no right to dissolve contracts in terms of that provision.Secondly,although the special provisions about legal dissolution right and discretionary dissolution right provide that the breaching party can dissolve contracts under specific circumstances in some nominative contracts,their scope of application are extremely limited.Finally,although the provision of counterplea cause of ongoing performance provides that the breaching party can refuse to continue to perform,it does not mean that the breaching party can dissolve the contract under this circumstance.According to the analysis of this part,there is no clear legal basis about dissolution right of contract of the breaching party.The third part is the necessity and rationality of the dissolution right of contract of the breaching party.Through the comparative analysis of legal system of dissolution right of thebreaching party and anticipatory breach of contract and circumstance modification,there are defects in existing legal regime.The existing legal regime cannot be able to realize functionality of legal system of dissolution right of the breaching party.Endowing the breaching party dissolution right of contracts under specific circumstances,is not only the necessary approach and requirement of solving the dilemma of bilateral breach,resolving trade deadlock and maintaining the case justice,but also the embodiment of principle of fairness and justice.It is necessary to regulate it.In the framework of the existing law,combining with the results of supplement the legal loopholes,it is reasonable to endow the breaching party dissolution right of contracts under specific circumstances.The fourth part is the analysis of the application conditions of the dissolution right of the breaching party.The recognition of the dissolution right of the breaching party does not mean no any restriction on it.On the contrary,the rationality and legitimacy of the dissolution right of the breaching party can be fully justified only under appropriate restrictions.This paper borrows factors from the current judicial adjudication,takes the purpose of the contract cannot be realized as an entry point,distinguishes the application conditions according to whether the contract is possible to perform.When the contract is impossible to perform,the purpose of the contract is certainly cannot be realized and the parties unable to take remedial measures.In this cases,both parties can dissolve the contract.When the contract is possible to perform,the breaching party can dissolve the contract only when the purpose of the contract cannot be realized,the breaching party has no subjective malice and ongoing performance will cause great losses.In addition,in order to avoid the breaching party dissolving contracts at will,when the breaching party wants to dissolve contracts,he must sue to the court.And then,the court need to judge whether the application conditions have been fulfilled.