On The Right To Rescind The Contract Of The Breaching Party

Article 94 of China’s Contract Law,stipulates four reasons for the exercise of the statutory right of termination.It is generally believed that under circumstances of force majeure,both parties to the contract have the right to terminate the contract by notice in the form of a single party,and the three parties breach the contract In the case of the contracting party,the exercise of the unilateral contract termination right is also widely accepted by the theoretical and judicial practice circles.As to whether the breaching party also enjoys the right to terminate the contract,although there is a consensus in theory and judicial practice,they generally hold a negative attitude.In the formulation of the Civil Code,some scholars have strongly acknowledged the right of the breaching party to terminate the contract.This idea was adopted in the second draft of the Civil Code Draft Contract,but it has aroused more heated discussions in the academic and practical circles.Article 353,paragraph 3 of the first and second drafts of the Civil Code stipulated that the breaching party had the right to terminate the contract,and Article 48 of the Minutes of the National Court Work Conference for Civil and Commercial Trials(hereinafter referred to as the Minutes)also provided the basis for the breaching party to sue for the termination of the contract.However,the third draft of the Civil Code draft’s contract edit deletes Article 353,paragraph 3.The author wrote this thesis in order to study whether the breaching party should have the right to terminate the contract.The main content of this thesis consists of four parts.The first part is an overview of the right to terminate the contract.In order to sort out whether the delinquent party has the right to rescind the contract,it is necessary to first define the concept and exercise of the right to rescind the contract.The second part is the analysis of the rationality of the delinquent party’s right to terminate the contract.In this part,in order to support the author’s argument that the defaulting party should enjoy the right to terminate the contract,the author demonstrates the legitimacy and feasibility of the defaulting party’s right to terminate the contract.In the third part,the author analyzes the provisions of Article 353,paragraph 3 of the second draft of the Civil Code Draft Contract edition,discusses the advantages and disadvantages of the provisions,and analyzes the reasons for deleting the provision in the third draft.This is one of the key points of this article.The fourth part is another important point of this thesis,that is,the choice of the legislative model for the right to terminate the contract by the delinquent party.In this part,the author analyzes the situation change model under the existing system and the Article 48 model of the Minutes.It is concluded that the existing system and regulations cannot completely solve the problems in judicial practice.Therefore,the author’s own point of view is that the the right to terminate the contract by the delinquent party should be formally stipulated in the Civil Code,the author proposed his suggestion on the subject on the basis of article 353,paragraph 3of the second draft Of the Civil Code contract edition.