Study On The Right To Terminate The Contract Of The Breaching Party

Scholars have different views on whether the breaching party has the right to terminate the contract.Article 94 of the contract law of the people ’ However,Article 110 of the contract law is often used by the court as the basis for the termination of the breaching party’s contract.At present,it is in the period of compiling the civil code of the People’s Republic of China(hereinafter referred to as the civil code),whether to give the breaching party the right to terminate the contract on the basis of the contract law,completely solve the ambiguous expression problem,and provide clear judgment basis for the situation of contract deadlock remains to be solved.Therefore,this paper mainly demonstrates two problems,chapter two to four The fifth chapter mainly demonstrates the exercise of the right to terminate the contract.To sum up,the overall structure of this paper :The first part is the introduction,which mainly explains the research background and significance of this paper.The research background is that there are disputes on the exercise subject of the right to rescind the contract,which coincides with the compilation period of the civil code,in order to provide reference for the legislation of the subject of rescission of the contract.The significance of the study is to provide feasible suggestions for the settlement of disputes and the compilation of the civil code,to provide sufficient basis for the subject of the breaching party of the right to rescind the contract and to explore the exercise of the right of rescission of the breaching party.The second part is to clarify the definition of the subject of the right to rescind the contract in the current law and the draft civil code,and the theory of the theory of the right to rescind the contract of the defaulting party.The main objects of this part are contract law,the first review draft of contract part of civil code of the People’s Republic of China(hereinafter referred to as the first review draft of contract part),the second review draft of contract part of civil code of the People’s Republic of China(hereinafter referred to as the second review draft of contract part),the draft of civil code,minutes of civil and commercial trial meeting of national court(Hereinafter referred to as "nine people’s minutes")and relevant judicial interpretations,not only should we clarify the definition of the subject of the right to terminate the contract,but also introduce the theoretical differences existing in Article 94 "parties" of the contract law.It is precisely because of such differences that the right to terminate the contract of the breaching party is so controversial;at the same time,the situation of the right to terminate the contract in the civil law system and the common law system should be clarified In order to provide reference for our legislation.The third part is a case study.From the perspective of practice,this paper provides areasonable basis for the termination right of the defaulting party.The object of the case is the case of Xinyu company v.Feng Yumei in the bulletin of the Supreme People’s court in2006.After reviewing this case,this paper analyzes the case,only by giving the breaching party the right to terminate the contract,can this kind of case judgment have sufficient basis.The fourth part is to demonstrate the legitimacy and rationality of the right to terminate the contract.The legitimacy of the right to terminate the contract is given to the breaching party.The efficiency breach does not violate the morality of the contract law.The theoretical value of the efficiency breach is consistent with the value of the contract law.The efficiency breach will not promote opportunism,and the efficiency breach and the compulsory performance go hand in hand.The rationality of giving the right to terminate the contract to the defaulting party and the right to terminate the contract to the defaulting party can avoid the cases that are not suitable for compulsory performance being effectively solved.Under the supervision of the public authority of the government,it is compulsory performance to force the defaulting party to continue to perform part of the unperformed contractual obligations.If the court’s judgment requires actual performance,whether the result of actual performance is consistent with the expectation is not guaranteed.The fifth part is the exercise of the right to terminate the contract of the breaching party.The conditions for the breaching party to exercise the right to rescind the contract,the draft civil code of China stipulates the conditions and procedures for the breaching party to rescind the contract under special circumstances.This paper holds that the breaching party should exercise the right of Rescission in a non malicious way,the subject matter is non monetary debt and category,the performance of the contract is hindered,and full compensation should be made.The exercise procedures should be based on the principle of prudent handling and the civil law The draft code has basically the same way of dealing with the contract.It is a civil procedural right to exercise the right to terminate the contract through litigation or arbitration.However,in the future,the civil code should clarify the right to terminate the contract of the defaulting party and the scope of compensation after the termination of the contract.The final conclusion of this paper is that,first of all,the right to terminate the contract of the breaching party should be clearly defined in the civil code,ending the expression of ambiguity,although the civil code of the People’s Republic of China(Draft)(hereinafter referred to as the draft civil code)has not clearly stipulated the right to terminate the contract of the breaching party.Secondly,we should make appropriate restrictions on the exercise of the right of rescission of the breaching party,make clear the conditions of exercise,make clear the procedures of exercise,and suggest that the court or arbitrationinstitution should be used to make clear the scope of compensation to be paid by the breaching party for rescission of the contract.