A Study On The Dissolution Of The Contract By The Breaching Party In The Deadlock Of Contract

The traditional theory of contract law requires the strict observance of the rules of the contract,and holds that only the non-defaulting party has the right to terminate the contract.Affected by this kind of rules,the original "Contract Law" never gave the defaulting party the right to apply for the cancellation of the contract in the content system of contract cancellation.However,in the "Xinyu Company v.Feng Yumei Store Sales Contract Dispute",the party that breached the contract,Xinyu Company,proactively applied for the termination of the contract,and the court finally decided to terminate the contract after review.Since the "Xinyu case",judicial cases in which the breaching party applied for contract cancellation due to contract deadlock have gradually increased.Whether the breaching party should be allowed to apply for dissolution of the contract to break the deadlock of the contract,if it is allowed,then the essence of the right is the right of dissolution,the right of litigation,or the right to request,and in what way should the right be exercised? These issues are in the codification of the Civil Code China urgently needs to be resolved.In this context,the second paragraph of Article 580 of the Civil Code has made bold attempts and innovations to resolve the deadlock of the contract.It stipulates the rules for the breaching party to apply for the termination of the contract,which has sufficient theoretical basis: First,the termination of the contract is mainly a kind of The purpose of relief,not punishment,is to break the deadlock in the contract,get rid of the shackles,and regain trading opportunities,so as to maintain the principles of fairness and good faith,and to ensure transaction efficiency.Secondly,the existing apparent unfairness,change of situation system,and actual performance of exclusion rules cannot effectively solve the contract deadlock problem.It is necessary to add the right of the breaching party to apply for the rescission of the contract to solve the contract deadlock.The "Xinyu case" and related judicial judgment cases are also both It fully stated that "the breaching party should be allowed to apply for termination of the contract." In terms of right qualitativeness,the right of the breaching party to apply for termination of the contract is defined as judicial termination,and the court or arbitration institution will finally decide whether to terminate the contract.Sort out the creation process of Article 580 of the Civil Code,clarify its legislative purpose,deeply understand and analyze the content of the first and second paragraphs of Article 580 of the Civil Code,and clarify the criteria for the court to review the breaching party’s application for termination of the contract.It is clear that the right to apply for termination of the contract by the breaching party complies with the considerations of value,justice and judicial practice,and will not cause moral hazard,nor will it violate the principle of strict adherence to the contract.Finally,through further thinking about the party’s application for judicial termination,it is clear that the precondition for the party’s application for judicial termination is that the non-defaulting party’s refusal to terminate the contract violates the principle of good faith and is obviously unfair to the breaching party.The parties should apply for termination of the contract.In addition,for the second paragraph of Article 580 of the Civil Code,it is necessary to use legal interpretation methods such as literal interpretation and purpose interpretation to fill the loopholes,further refine the criteria for determining contract deadlock,and correctly understand "the creditor is within a reasonable period of time." Circumstances of failure to request performance,supplementary investigation of the debtor’s subjective malice in the context of“excessive performance costs” and “non-requested performance within a reasonable period of time”.