The Right To Terminate The Contract Of The Breaching Party

Article 94 of The Contract Law of Our country stipulates the conditions for the exercise of the general legal right of rescission,however,the subject of exercising the legal right of rescission is only described as the "party",without distinguishing the subject of right and meaning is unclear.On whether the breaching party is included in the "parties" and becomes the subject of the right to terminate the contract,there are different opinions in the academic circle.The negative view is based on the strict adherence to the contract and the traditional moral idea that the parties are only the non-breaching party,affirmative point of view based on the equality of contract subjects and the pursuit of economic benefits analysis parties should include the party in breach.In judicial practice,some courts support the request of the breaching party to terminate the contract,while some hold that the breaching party has no right to terminate the contract.China's civil code has experienced many twists and turns in the process of revision.Article 353 of the second draft of the civil Code stipulates the circumstances of the party in breach canceling the contract,but the full text of the draft civil Code was deleted,however,the full text of the Civil Code published on 2020 stipulates in Article 580 that,under special circumstances,the breaching party may request the court to terminate the contract.It is in this context that this paper makes an in-depth study of the right to terminate the contract of the breaching party.The first part of this paper defines the concept and nature of the right to terminate the contract of the breaching party.The right to terminate the contract of the breaching party belongs to the right of action,and the right granted to the breaching party accords with the principle of efficiency,the principle of good faith and the principle of balance of interests.The second part of this paper investigates the contract rescission right system of the breaching party from the perspective of comparative law.There are some problems in Chinese laws concerning the contract rescission right of the breaching party,such as unclear semantics of the subject of the legal contract rescission right and no clear provisions on the property of the right,The common law system applies the theory of efficiency breach to solve the problem of the party in breach of contract,while the civil law system uses the social cost control theory to solve the problem.The third part of this paper mainly discusses the basis for applying the right of the defaulting party to terminate the contract.The observant subject theory does not conform to the trend of social development and other approaches cannot fundamentally solve the problem of contract deadlock.In practice,the court's application and support of the right to terminate the contract of the breaching party also shows that it is necessary to construct the rule of the right to terminate the contract of the breaching party.The fourth part of this paper tries to construct the rules of the contract termination right of the breaching party.T he exercise of the right to terminate the contract by the breaching party must simultaneously satisfy the following conditions:the non-monetary obligation to pay non-specific obligations,the passive avoidance default,the limited and calculable damages to the non-breaching party,and the non-breaching party can get full compensation,and shall be exercised in the form of litigation.The termination of the contract by the breaching party shall not affect its liability for damages to the non-breaching party,and the scope of compensation shall follow the principle of full compensation.At the same time,it is also subject to other principles.