Research On The Judicial Status Of The Right To Terminate The Contract Of The Breaching Party

There are some disputes in the judicial and theoretical circles about the termination right of the breaching party’s contract.The subject of the legal termination right of the contract stipulated in article 94 of the contract law has no clear direction,but the recognition of the breaching party’s termination right in judicial practice challenges the existing concepts and rules.In fact,because the current law does not explicitly prohibit the breaching party to terminate the contract,the judicial application of the breaching party’s right to terminate the contract is flexible in the discretion,resulting in the inconsistency of the court’s judgment.This thesis aims to take the judicial application of the right to terminate the contract of the breaching party as the entry point of the study,and take the way of empirical study to finally draw the conclusion that the breaching party can Sue for the termination of the contract,but it must be applied under limited conditions.Theoretically,it is helpful to clarify the necessity and rationality of granting the breaching party the right to terminate the contract,which can effectively avoid the deadlock of contract performance and save social costs and resources.In judicial practice,it can better urge the judge to exercise the discretion,make the judicial result of the people’s court more reasonable,so as to maintain the credibility of the law and improve the credibility of the contract parties to the judgment result.The introduction mainly discusses the reasons,significance,current research situation,research thoughts and methods,innovation and deficiency of the paper from the two dimensions of theory and practice.The first chapter is about the sample population and The problem of judicial application is found through the sample.First of all,briefly describe the selection process and results of sample cases in the paper;Then,according to the sample involved by,the time of the judgment and the basic distribution of the case tomaintain the sample data statistics,and make a chart and text description;Finally,some relatively typical second instance amendment and retrial cases were selected from 127 sample cases,and the main points of the case involving the court were briefly summarized in the form of a list.Through the relevant forms and the statistics and analysis of samples,it is reflected that the sample court has inconsistent judicial application of the right to terminate the contract of the defaulting party.The second chapter of the text is "the rationality of the breaching party’s right to terminate the contract".The chapter on the basis of the first chapter problems involved,Firstly from the nature of the right to terminate a contract,and cancel the subject two aspects to elaborates the research situation of the legal right to terminate the contract main body,the second is through the court case on the question of breach of contract termination right the applicable contract law principles,such as the principle of fairness and good faith,the purpose of the contract and the referee is based on "contract law" legislation experiences summarized,finally from the breaching party contract termination right its legitimacy in the judicial application of enlightenment.The third chapter is "the rule of law of the breaching party’s termination right".This chapter from two dimensions of the judicial and legislative problems of breach of contract rescission puts forward the corresponding Suggestions.From the aspects of legislation,through civil code draft civil code of reviewing and regarding the change "default party terminates the contract",in the case of civil code space,the establishment of the system of the judicial interpretation in the future.From the perspective of judicature,in order to prevent the breaching party from exercising its rights maliciously for the purpose of terminating the contract,four restrictions on the judicatory application of the breaching party’s right to terminate the contract are put forward in order to provide a certain direction for future judicial practice.