On The Right Of Cancellation Of Contract To Execute By Forming The Right Of Action

China's theoretical community's general theory deems,the right to contract cancellation is a simple right to form.The exercising method is that the party with the termination right sends the intention to cancel the contract to the other party,and the contract is released when the notice arrives.China's "Contract Law" also adopted this view.However,in practice,there are numerous cases in which the party with the termination right has filed a lawsuit directly to the court and asked to terminate the contract without sending a notice of dismissal.Since this kind of circumstance does not have a clear basis in the current law in our country,it has resulted in trial practice in "same cases with the different sentence" situations.Theoretical circles and practical sessions have two different theories:"positive theory" and "negative theory" as to whether the contract legal relief right can be exercised in the formation of the right of action.There are three arguments for"negative theory",but all of them are deficient:the statement of "statutory obligation"confuses the relationship between rights and obligations;the statement of "courts have no power to say" confuses the relationship between civil rights and procedural realizations;the statement of "reverse interpretation" mistakes legal logic inference; the party with the termination right faces many disadvantages under the "negative theory".In comparison,"positive theory" has the necessity of practice.In the explanation,it should adopt the method of natural interpretation.From the starting point of "give light to light weight",it can be proved that the cancellation of the contract,which is originally a simple right of action,can be exercised by way of formation of the right to appeal.In practice,"positive theory" has received more support and should continue to be perfected.On the basis of insisting on the view of "positive theory",when the contract is relieved is determined to the time of "a copy of the bill of complaint is delivered" or"the judgement comes to effect".However,the view of the contract is relieved when a copy of the bill of complaint is delivered confuses the procedures for the simple formation of rights and the formation of procedural rights.And when a copy of the bill of complaint was delivered,the other party had no reason to believe that the contract had been relieved.Therefore this view has shortcomings.The reasonableness of the view of the contract is relieved when the judgement comes to effect lies in these following aspects:conform to the general rules of exercising contract legal relief right with the formation of the right of action;the facilitation of the court proceedings and the judicial resources;does not increase the loss of the party exercising the right of cancellation;the need of trial practice.