A Study On The Rescission Of Contract By The Defaulting Party

Contract is the most important part of economic life,the traditional view is that the exercise of contract termination right is limited to the non-breaching party.For the breaching party,either continue to perfom the contract or passively respond to the claims of the other party.However,the traditional theory and common practice(such as contract at the end of the relevant laws and specify the main body can only is the default party exercising termination right,while in the academic reserch and the practice will be course the explanation for the non defaulting party)are applicable exceptions,the default party under certain conditions can also be the solution Chen Ge with,for that matter,there has been a lot of controversy.Trial in its turn,based on the number of rational considerration,the approval of party a with the rescission of the referee,for breach of contract rescission research offers a wide range of practical support,and to explore whether the breaching party may terminate the contract and in what circumstances to cancel the contract provides a powerful reserch material,it is important to note that in the process of establishing our country civil code,the civil code of the contract(draft)a review and a second trial of sugar are on the breaching party with the termination right this innovative system design to make the rules.Through relevant case studies,this paper discusses whether the breaching party can enjoy the right to terminate the contract and under what circumstances it can enjoy the right to terminate the contract.At the same time,the auther thinks that the breaching party should compensate the non-breaching party for the performance loss after the termination of the contract,and should strengthen the recognation and protection of the non-breaching party’s loss.In addition to the introduction and conclusion,this paper is divided into four parts.The first part mainly discusses the theoretical and practical differences in the termination of the contract between the breaching party.Firstly,this paper expounds the different viewpoints of the academic circle that the breaching party cancle the contract.Secondly,the author analyzes the different attitudes of the judges on whether the breaching party has the right to cancel the contract in judicial practice through case study.The second part of the breaching party from five aspects legitimacy was analyzed,and the rights of the termination of the contract in the first place,effectively made up for the inadequacy of continue to perform the responsibility way,secondly,conform to the law ofcontract termination of the contract system of legislative purpose,again,meet the inherent requirement of the principle of good faith:in the end,from the theory of efficient breach and validation of the common law legislation practice two aspects analyzes the rationality of the breaching party to cancel the contract.The third part is about the party in breach exercising the right to rescind the contract.The auther summarizes the conditions for the breaching party to terminate the contract into four parts:first,the purpose of the contract cannot be realized;third,it is unfair to continue the performance;third,the breaching party is not in bad faith,it is to bring a lawsuit or apply for arbitration.At the same time,the author discusses in detail the controversial issues of "contract purpose","malice" and so on.The fourth part discusses the civil liability of the breaching party when it terminates the contract.On the basis fo the existing theory,the author thinks that the party who violates the contract should bear the loss of performance interests of the party who violates the contract should strengthen the identifivation and protection of the party who violates the contract,and rationality of this view is discussed from the economic,judicial and human levels.At the same time,the compensation for damage is also subject to the adjustment of certain rules,foreseable hanging rules and other restrictive rules.